TMI Blog2011 (11) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... be done directly u/s 143(2) cannot be done u/s 142(1) of the Act. In respect to addition on account of capital gains it is held that Gram Panchayat is not an authority to issue a certificate to show that the land was situated beyond the distance of more than 8 KM of the municipal limit. Therefore, issue is restored back to the file of the AO to decide whether it is a capital asset or not and thus decide allowability u/s 54.- Decided partly in favor of assessee. - IT APPEAL NO. 252 (JP) OF 2011 - - - Dated:- 22-11-2011 - R.K. GUPTA, N.L. KALRA, JJ. Nikhlesh Kataria for the Appellant. Sunil Mathur for the Respondent. ORDER N.L. Kalra, Accountant Member The assessee has filed an appeal against the order of the ld. CIT(A)-III, Jaipur dated 24-1-2011 for the assessment year 2007-08. 2.1 The first ground of appeal which consists of three sub-parts is as under:- 1.1 The order passed u/s 144 is bad in law and on the facts of the present case and hence, the same may please be quashed 1.2 The ld CIT(A) also erred in law as well as on the facts of the present case in treating the return filed by the assessee as non est though the same was a valid return und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the return is furnished. In the instant case, no notice u/s 143(2) has been issued. Before the AO, the assessee submitted vide letter dated on 27-10-09 personally filed as per copy of the letter that proceedings are barred by limitation as no notice u/s 143(2) has been issued to the assessee on or before 30-09-08. The copy of this letter is available at page 7 of the paper book. The ld. AR therefore, submitted that the assessment order is bad in law. According to the ld. AR, the provisions of Section 142(1) are essentially related to the enquiry before assessment. At the time of issuance of notice, one has to necessarily see as to whether any assessment can be framed on the basis of such notices. 2.5 The AO has issued notice u/s 142(1) on 13-04-09 and at that relevant time, the AO was not in a position to make any assessment as per time limit available u/s 153 of the Act. Our attention was drawn to the decision of Delhi Bench in the case of Dr. K.C. Verma v. Asstt. CIT [2003] 84 ITD 33 (SMC) in which it has been held that notice u/s 142(1) cannot be issued when power to assess is lost due to limitation. In absence of notice u/s 143(2), the assessment cannot be framed u/s 143( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng an assessment under this Act, the Assessing Officer may serve on any person who has made a return under section 115WD or section 139 or in whose case the time allowed under sub-section (1) of section 139 for furnishing the return has expired, a notice requiring him, on a date to be therein specified,-- (i) where such person has not made a return within the time allowed under sub-section (1) of section 139 or before the end of the relevant assessment year to furnish a return of his income or the income of any other person in respect of which he is assessable under this Act, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed, or Provided that where any notice has been served under this subsection for the purposes of this clause after the end of the relevant assessment year commencing on or after the 1st day of April, 1990 to a person who has not made a return within the time allowed under sub-section (1) of section 139 or before the end of the relevant assessment year, any such notice issued to him shall be deemed to have been served in accordance with the provisions of this sub-section. (ii) to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e return relates to a previous year relevant to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, the reference to one year aforesaid shall be construed as a reference to two years from the end of the relevant assessment year." 2.9 Section 142 is for the purpose of making an assessment under the Income-tax Act. Notice u/s 142 can be issued for requiring the assessee to furnish the return as per sub-clause (i) of Section 144(1). In case the assessee has made a return then the AO can require the assessee to produce such accounts or documents as may be required by the AO or to furnish an information on the points specified by the AO. In the instant case, notice u/s 142(1) dated 16-08-07 was issued to the assessee to file the return of income for the assessment year 2007-08 by 20th Sept. 2007. The contention of the Revenue is that the return filed on 27-03-08 cannot be considered as a return filed in response to notice u/s 142(1) of the Act. Section 139(4) allows the assessee to furnish the return before expiry of one year from the end of the relevant assessment year or before completion of the assessment whichever is earlier. In case the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be done directly cannot be done indirectly. The Hon'ble Allahabad High Court in the case of Anupam Sushil Garg v. CIT [2004] 265 ITR 474 (at page 477) has observed as under:- ''It is a settled proposition of law that what cannot be done "per directum is not permissible to be done per obliquum", meaning thereby, whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud." In Jagir Singh v. Ranbir Singh, AIR 1979 SC 381, the Apex Court has observed that an authority cannot be permitted to evade a law by "shift or contrivance". While deciding the said case, the Supreme Court placed reliance on the judgment in Fox v. Bishop of Chester [1824] 2 B C 635, wherein it has been observed as under (page 384) :- To carry out effectually the object of a statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined." Law prohibits to do something indirectly which is prohibited to be done directly. Similar view has been reiterated by the Apex Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch, 2000 which was certainly beyond the date of 30th April, 1999, and therefore, it has to be held that the issue of notices u/s 142(1) was barred by the period of limitation. Consequently, the assessment framed in pursuance of such notice was illegal and without jurisdiction :- Dr Vijay Kumar Datla v. Asstt. CIT [1997] 58 ITD 339 (Hyd.) relied on.'' Hence considering the above decision and taking into account as to what cannot be done directly cannot be done indirectly, we feel that assessment order is invalid. 2.13 We do not agree with the contentions of the ld. AR that assessment u/s 144 cannot be made in case the assessee has made part compliance of notice u/s 142(1) of the Act. If the assessee fails to comply with all the terms of notice then the AO can make assessment u/s 144 of the Act. The Honb'le Apex Court in the case of Hotel Blue Moon (supra) held that issuing of notice u/s 143(2) is mandatory for checking of the return filed by the assessee. Since there is no notice u/s 143(2) or u/s 142(1) within time available u/s 143(2), therefore, the assessment is invalid because the first notice u/s 142(1) was only for the purpose of filing the return. For the purpose of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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