TMI Blog2011 (10) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... hat return was filed beyond time it is held that When AO has passed the order taking into account the return filed thus it is too late for revenue to contend that order passed u/s 144 ignoring the return in which event no notice u/s 143(2) is required - Decided in favor of assessee. - IT APPEAL NO. 131 OF 2010 - - - Dated:- 20-10-2011 - N. KUMAR AND RAVI MALIMATH, JJ. K.V. Aravind for the Appellant. A. Shankar and M. Lava for the Respondent. JUDGMENT N. Kumar, J. The Revenue has preferred this appeal, challenging the order passed by the Tribunal which has set aside the order of assessment on the ground that the assessment has been made under Section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as 'th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 42,53,470/- and the cash. A notice under Section 142(1) of the Act was served on the assessee, calling upon the assessee to file the return and furnish the particulars sought for. He did not comply with the said notice. One more notice was sent on 18.10.2006, but there was no response. Again on 16.02.2007, one more notice under Section 148 of the Act was issued, for which also there was no response. In reply to one of such notices, the mother of the assessee requested for time. Summons under Section 131 of the Act was issued, for which also there was no response. Then a show-cause notice under Section 274 read with Section 272A(1)(c) was issued. In pursuance to the same, he appeared on 08.11.2007 and submitted that he received summons aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. 3. The learned Counsel for the revenue assailing the impugned order contended that the order in question is a best judgment assessment passed under Section 144 of the Act. Before passing the said order, no notice under Section 143(2) is contemplated under law. The Tribunal committed an error in treating the impugned order as an order under Section 143(3) and therefore, he submits the impugned order requires to be set aside. 4. Per contra, the learned Counsel appearing for the assessee supported the impugned order. 5. Annexure-A is the order passed by the Assessing Authority. In Column 12 in the front page as against the column section and sub-section under which the order is made, it is categorically mentioned as under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the firm, the interest income taxable in the hands of the assessee is worked out as under: - (In Rs.) Capital contributed by the assessee in the firm as reflected in the assets side of the balance sheet filed by the assessee with return of income filed for the assessment year 2005-06 11,58,277 Interest at the rate of 12% 1,38,993 That is how a sum of Rs. 1,38,993/- is brought to tax as undisclosed income of the assessee." 6. These undisputed facts clearly demonstrates that the Assessing Authority took note of the return filed by the assessee for the assessment year 2005-06 and has passed an order not accepting the said return and therefore, he has made addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interest income from the partnership concern. It is not in dispute that no notice as required under Section 143(2) of the Act has been issued. Therefore, as rightly held by the Tribunal when an order of assessment is made under Section 144 on the ground that the assessee having made a return failed to comply with all the terms of the notice issued under sub-section 2 of Section 143, when no such notice is issued, even if that order is said to have been passed under Section 144 is void ab initio as being contrary to the aforesaid the statutory requirement. Realising the said mistake, the revenue contends that though a return is filed it was filed beyond the time and therefore, it was not taken into consideration. It is an invalid return. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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