TMI Blog2012 (9) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh beyond the period mentioned in the said notice, and this was done before the date of assessment. AO having considered such return for finalizing the assessment, was duty bound to comply with the requirement of the Act for issuing notices. Requirement of Section 143(2) would apply even where re-assessment proceedings are initiated. Since no notice was issued either u/s 143(2) or 142(1), CIT(A) was justified in holding the re-assessment to be not valid and quashing such re-assessment - Decided in favor of assessee - IT Appeal No. 922 (Mds.) of 2011 - - - Dated:- 21-6-2012 - Abraham P. George, Challa Nagendra Prasad, JJ. K.E.B. Rengarajan for the Appellant. S. Sridhar for the Respondent. ORDER Abraham P. George, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one under Section 144 was not valid, for want of such notices. CIT(Appeals) sought a remand report from the Assessing Officer. In reply, it was stated by the Assessing Officer that the return filed by the assessee, pursuant to notice under Section 148 of the Act, was beyond the time limit mentioned in such notice and therefore, the assessment was completed under Section 144 of the Act. Insofar as non-issue of notice under Section 143(2) of the Act, A.O. was of the opinion that there being no valid return filed in response to the notice under Section 148 of the Act, there was no necessity to issue any notice under Section 143(2) of the Act before completion of the assessment, especially when it was completed on best of judgment basis. When t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fatal to the assessment itself. It was a curable defect at the most required to be remitted back to the Assessing Officer for following the proper procedure. Insofar as reliance placed by the CIT(Appeals) on the decision of Hon'ble Apex Court in the case of Hotel Blue Moon ( supra ) was concerned, learned D.R. submitted that the said decision applied only to a block assessment and not for an assessment reopened under Section 147 of the Act. When the assessee had not filed the return within the time allowed, the Assessing Officer was within his rights to proceed with a best judgment assessment under Section 144 of the Act. 6. Per contra, learned A.R., strongly supported the order of CIT(Appeals) and also placed reliance on the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mply with all the terms of a notice issued under sub-section (1) of section 142 [or fails to comply with a direction issued under sub-section (2A) of that section) or ( c ) having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of section 143, the Assessing Officer, after taking into account all relevant material which the Assessing Officer has gathered, [shall, after giving the assessee an opportunity of being heard, make the assessment] of the total income or loss to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment." 8. Here, the assessee had filed return under sub-section (1) of Section 139 originally and therefore, limb (a) of sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would apply "so far as may be" to it as though it was a return required to be furnished under Section 139 of the Act. The term "so far as may be" has been interpreted by Hon'ble Apex Court in the case of Hotel Blue Moon (supra), though in relation to Section 158BC(b) of the Act, as not to exclude the requirements of Section 143(2). We are of the opinion that the requirement of Section 143(2) of the Act would apply even where re-assessment proceedings are initiated. No doubt, provisos to Section 148(1) of the Act do mention certain situations where a notice served even after the expiry of twelve months would not be considered invalid. However, these are cases where a notice was served though late. Here admittedly no notice was issued under ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
