TMI Blog2013 (12) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant : R. Laxman For the Respondent : K. V. Chalamaiah ORDER Saktijit Dey, J. This appeal by the department and Cross Objection by the assessee are directed against the order dated 28-2-2011 passed by the CIT (A), Guntur in ITA No.0225/DDIT(E)-II/CIT(A)/GNT/07-08 pertaining to the assessment year 1999-2000. 2. Briefly the facts are, the assessee, a society is engaged in the activity of running educational institution. For the impugned assessment year, the assessee filed its return of income on 30-1-2002 declaring 'nil' income. As noted in the assessment order by the Assessing Officer, since the return was not filed within the due date prescribed u/s 139(1) and even the extended period provided u/s 139(4) of the Act, the return was treated as non est. The Assessing Officer initiated action u/s 147 of the Act by issuing a notice u/s 148 of the Act on 21-3-2006 which was served on the authorised representative of the assessee Sri K.V. Chalamaiah on 15-9-2006. Information received as a result of survey operation conducted u/s 133A in July, 2005 at Ramtekh, Maharashtra disclosed that the assessee society had collected ₹ 27,78,000 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CIT (A) in this regard is extracted hereunder:- Regarding other contention of the appellant that the A.O. erred in completing the assessment u/s. 143(3) before service of mandatory notice u/s. 143(2) on facts and in the circumstances of the case, which is not a valid assessment has a point to consider. The A.O. conspicuously was silent on this issue. Perusal of records revealed that no such incidence was spotted. It is a settled matter by now that issue and service of a notice under section 143(2) is mandatory for a valid assessment to be made, that too with in twelve months from the end of the month in which the return has been filed. The Allahabad High Court in the case of Rajeev Sharma reported in 92010) 232 CTR 303 (All.) held that the provision contained in section 143(2), is mandatory in nature and it is obligatory for the Assessing Officer to apply his mind to the contents of the return filed in response to notice under section 148 and thereafter issue notice under section 143(2), before proceeding to decide the controversy regarding escaped assessment, non issue of notice under section 143(2), after filing of return by the appellant vitiated the reassessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned Departmental Representative referring to a decision of Agra bench of Income-tax Appellate Tribunal in case of Chandra Bhan Bansal v. Dy. CIT [2001] 79 ITD 639 submitted that the CIT (A) was wrong in cancelling the assessment for the reason that no notice u/s 143(2) was served within 12 months. He submitted that while doing so, the CIT (A) also lost sight of the fact that there was no return of income filed in response to the notice, hence there cannot any requirement of issuing notice u/s 143(2) of the Act. The learned Departmental Representative also relied upon the decision Kerala High Court in case of K.J. Thomas v. CIT [2008] 301 ITR 301. 6. The learned authorised representative for the assessee has also filed written submissions before us. The contention of the learned authorised representative for the assessee with regard to aforesaid issue is that the Assessing Officer has completed the assessment u/s 143(3) read with section 147 of the Act. Therefore, it is mandatory that before proceeding for assessment u/s 143(3) of the Act, a notice u/s 143(2) is required to be issued to the assessed. It is further submitted that admittedly the Assessing Officer neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer has wrongly mentioned it as 143(3) read with section 147 of the Act. On the contrary, the learned Departmental Representative has tried to make out a case that when there is no valid return filed by the assessee, there is no requirement of issuing notice u/s 143(2) of the Act. However, we are unable to accept such contention of the learned Departmental Representative. If the Assessing Officer treats the return filed belatedly to be a non est return then certainly the Assessing Officer could not have proceeded for making assessment u/s 143(3) of the Act. However, once the Assessing Officer proceeds to complete the assessment u/s 143(3) of the Act, then the mandatory requirement under the statute is that he must issue a notice u/s 143(2) of the Act, which has not been done in the present case. As held by the Hon'ble Supreme Court in the case of Hotel Blue Moon (supra) the requirement of issuing notice u/s 143(2) of the Act is a mandatory requirement and not a curable procedural irregularity. When the statute requires an act to be done in a particular manner, then it has to be done in that manner only. The Assessing Officer having proceeded to make an assessment u/s 143(3) re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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