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Medapati Venkayamma Versus Income Tax Officer Ward-2 Amalapuram

2017 (9) TMI 809 - ITAT VISAKHAPATNAM

Reopening of assessment - Inquiry before assessment initiated - assessment proceedings were initiated by issue of notice u/s 142(1) and before concluding the assessment proceedings, the assessing officer has issued notice u/s 148 for reassessment - Held that:- In this case, the assessing officer has issued notice u/s 142(1) within time limit allowed for filing return of income under section 139 of I.T. Act. Since the assessee failed to respond to the notice u/s 142(1), the assessing officer shou .....

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ted to carry on the assessment proceedings and reassessment proceedings simultaneously. - Decided in favour of assessee. - I.T.A.No.252/Vizag/2013 - Dated:- 18-8-2017 - SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER For The Appellant : Shri G.V.N.Hari, AR For The Respondent : Shri D.J.P. Anand, DR ORDER D.S. Sunder Singh, Accountant Member - This appeal is filed by the assessee against the order of the Commissioner of Income Tax (Appeals), [CIT (A)]-11, Mumbai h .....

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nd the same was served on assessee on 15.02.2010. As per the notice issued u/s 142(1) the assessee has to file return of income before the due date mentioned in the notice, but the assessee choose not to file the return of income. The assessing officer issued notice u/s 148 on 16.11.2010 which was served on the assessee on 22.11.2010. In response to the notice issued u/s 148, the assessee filed return of income on 09.03.2011 declaring total income of Rs. Nil and agricultural income of ₹ 40 .....

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r : 4.3. I have carefully considered the facts of the case, the submissions of the appellant and assessment order. In view of the facts on record, it is noticed that the assessee did not file its return of income suo-motu. In spite of several reminders by the AO, the assessee was not filing its return of income. The conduct of the assessee clearly shows that had the AO has not initiated the reassessment proceeding, the assessee would have evaded the tax that it was supposed to pay and therefore, .....

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1) and has to complete the assessment u/s 144 by issue of show cause notice before 31.03.2011. There is procedure laid down in the Act for completion of the Best judgement assessment u/s 144 in case of non cooperative assessee. Therefore, the assessing officer is duty bound to complete the assessment within the time allowed under the Act for completing the assessment. By issue of notice calling for the return of income u/s 142(1), the assessing officer has initiated the assessment proceedings an .....

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ssment u/s 142(1) of the Act. If the assessee files return of income, the scrutiny assessment proceedings would commence by issue of notice u/s 143(2) and in case of non furnishing the return of income, the assessing officer should resort to Best judgement assessment u/s 144 by issue of a show cause letter for making ex-parte assessment as per the information available with the assessing officer. Ld.AR further argued that when the assessment proceedings are already initiated by issue of notice u .....

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2010 for reopening the assessment which is bad in law and has to be treated as invalid. When the assessment proceedings are already pending, the notice issued u/s 148 is invalid and the assessment order passed u/s 143(3) is barred by limitation. 4. On the other hand, the Ld. DR argued that the assessing officer has issued notice u/s 142(1) calling for the return of income for the A.Y.2008-09 on 29.01.2010 and the assessee failed to furnish the return of income by 25.02.2010 the due date given in .....

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s valid. 5. We have heard the rival submissions and perused the material placed on record. The assessing officer has passed the order in this case u/s 143(3) of I.T. Act. In this case, the assessee did not file the return of income hence the assessing officer issued notice u/s 142(1). There was no return of income filed by the assessee in response to the notice issued u/s 142(1). The assessing officer is empowered to issue notice u/s 142(1) for the purpose of making assessment under I.T. Act and .....

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information for the purpose of making assessment u/s 142(1). In case, if the assessee fails to furnish the return of income, provisions of section 144 of the Act applies and the assessing officer is required to complete the assessment as per the procedure laid down u/s 143(2) / 144 of I.T. Act. The time limit for completion of assessment is within two years from the end of the relevant assessment year. In case, the assessee did not respond to the notice issued u/s 142(1) and the assessing offic .....

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d 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 : Notice u/s 142(1) is issued in c .....

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ction 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 assess .....

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tion as they stood immediately before their amendment by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), shall apply to and in relation to any assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year and references in this section to the other provisions of this Act shall be construed as references to those provisions as for the time being in force and applicable to the relevant assessment year. 5.2 In this case, the assessing officer has .....

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assessment. 5.3 The procedure for reassessment is also enshrined in section 147, 148 and 143 of I.T. Act. Where the assessee is having taxable income but not filed the return of income, the assessing officer is empowered to issue notice u/s 148 after recording the reasons. Similarly, where the assessee has furnished return of income, but the assessing officer has a reason to believe that income chargeable to tax has escaped assessment, after recording the reasons, the assessing officer has to ta .....

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fied in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139 :] 5.4 On furnishing the r .....

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a for furnishing the return of income except recording the reasons in the case of section 148. Once the assessing officer has initiated assessment proceedings, the assessing officer cannot resort to reassessment unless the assessment proceedings are concluded. In this case, the assessment proceedings were initiated by issue of notice u/s 142(1) and before concluding the assessment proceedings, the assessing officer has issued notice u/s 148 for reassessment. Since the notice u/s 148 is issued wi .....

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