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2020 (6) TMI 239 - AT - Income TaxValidity of reopening of assessment - Information about huge cash deposit in the bank account - as alleged assessment framed is without jurisdiction as statutory notice u/s 143 (2) of the act was issued on the date of filing of the return of income - case was transferred to the present AO ITO Ward-2,Hissar from ITO Ward 5, Hissar - on receipt of return of income in response to show cause notice u/s144 notice u/s 143 (2)/142 (1) along with questionnaire were issued and served upon the counsel of the assessee on the spot - assessee has raised unsecured loan from five different persons - whether AO could have applied his mind on the return of income furnished by the assessee and “considered it ‘necessary’ to issue notice on the spot? HELD THAT:- Available information in the return is already on record with the assessing officer. Such a situation, it is possible that AO may on looking at the notice itself find it ‘necessary” to issue the notice u/s 143(2) of the act. Thus imputing waiting time to the AO for issue of notice u/s143 (2) of the act is perhaps not justified. Because, in such cases the AO might have verified the original return of income at the time of issue of notice u/s148 of the act, if he does not find such information in the return, then only he issues notice u/s 148 of the act. Otherwise, why he would issue a notice if the information is available in the original return it. We do not agree with the proposition that even in such a situation as mentioned by us above, the notice issued u/s143 (2) of the act by the Ld. AO on the same date of the date of filing of the return can be found fault with. In the present case, the return of income filed by the assessee was accompanied with the competition of income, the trading and profit and loss account as well as the balance sheet of the assessee along with the fixed assets account and capital account. At the time of issue of notice, the AO was merely having information about cash deposit of ı 1297900 in his savings bank account maintained with Indusind Bank Limited. AO did not have any information about what kind of business assessee is doing, whether the bank account in which alleged is deposited, whether that appears in the balance sheet of the assessee. Whether the level of income shown by the assessee justifies the amount of cash deposited etc. In such a situation, it can be said that, the AO did not thought it “necessary’ but issued the notice in a mechanical manner. If assessment order is read carefully, it shows that not only he issued the notice u/s143 (2)/142 (1) of the act but also issued questionnaire. In addition, that too along with the notices was served on the spot when he went to file the return to the counsel of the assessee. In such a situation the decision of SOCIETY FOR WORLDWIDE INTERBANK FINANCIAL, TELECOMMUNICATIONS [2010 (4) TMI 43 - DELHI HIGH COURT], clearly says that before issue of notice, AO has to examine the return filed by the assessee. In the present case, not only that the AO issued the notice on the spot to the counsel of the assessee but also issued questionnaire along with that. In such a situation, we are unable to sustain the assessment order passed by the Ld. assessing officer. Thus, we quash the assessment order passed by the Ld. AO u/s143 (3) - Decided in favour of assessee.
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