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TMI Blog2018 (3) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... n the assessee before the expiry of six months from the end of the financial year in which return is furnished, but in the case under consideration no return was filed by the assessee. 4. That the appellant craves to leave, add, alter and amend any of the grounds of appeal on or before hearing. 5. That the order of the Ld. CIT(A) deserves to be set aside and order of the AO be restored. 2. The brief facts of the case are as per the AIR information regarding purchased property for Rs. 52,12,875/- in FY 2007-08. Therefore, notice u/s. 148 of the I.T. Act, 1961 was issued on 18.3.2015 to be fixing the date for compliance within 30 days, but no compliance was made by the assessee. Thereafter, notices u/s. 142(1) of the I.T. Act were issued on 26.6.2015 and to be fixing the date for compliance on 2.7.2015 and 23.9.2015 respectively but again no compliance was made by neither the assessee nor any representative on behalf of the assessee. Thereafter a show cause notice u/s. 144 of the I.T. Act was issued on 19.2.2016 and fixing the date for compliance for 26.2.2016, but assessee did not comply the said notice and accordingly, the AO completed the assessment u/s. 144 of the I.T. Act b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or rectified by the protection available to the Revenue u/s 292 BB of I.T. Act, 1961. 5. The Ld. Counsel submitted that the jurisdictional High Court has dealt with this issue & has held that without assuming jurisdiction u/s 143(2) of I.T. Act, 1961, the assessment cannot be framed & if at all the A.O. framed an assessment order without assuming jurisdiction u/s 143(2) of I.T. Act, 1961 the same is bad in law & cannot be sustained in the law. 6. The Id. counsel relied upon the first para of the impugned assessment order where the Id. A.O. has recorded the sequence of the procedural events and the notices issued by him and in which there is no mention of notice under section 143(2) of I.T. Act, 1961. Res ipsa loquitor, the Id. counsel submitted that he does not need to prove his submissions. 7. Admittedly, Id. A.O. has not issued notice u/s 143(2) of I.T. Act, 1961. The facts of the case on this issue are therefore, not in dispute. 8. As the objection to the availability of jurisdiction to Ld. A.O. to frame the assessment order is being raised as preliminary issue & goes to the root of the dispute between the appellant & the Revenue, it need to be considered before, if nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpliance to the notice issued u/s. 148 of I.T. Act, 1961. 13. This situation, however, is merely hypothetical. Non-compliance of notice .u/s. 148 will merely give rise to a cause of action to call for the Return of income further under the applicable and available provisions of law which will include the jurisdiction conferred u/s. 142(1) of I.T. Act, 1961 & proceed thereafter as may be necessary in the facts & circumstances of the case. The A.O. will not have any jurisdiction to frame an assessment merely because the assessee has failed to com ply with the notices issued u/s. 148 and 142(1) of LT. Act, 1961. The scope and domain of sections 147 and 148 on the one hand and section 142 (1) are not meant for framing of assessment. These sections are only for calling for the return of income and in a case where the assessing officer finds discrepancy between the return of income filed and the information on its records or where despite the lawful invocation of jurisdiction calling for the Return of income the assessee has failed to comply and furnish the Return of income and the assessing officer is of the view that the information on its records discloses taxable income which has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the framing of the assessment order in the event of non-filing of Return of income whether an its own motion or in the vent of notices issued by the A.O. calling for filing of Return of income whether u/s 142(1) or 148 or 139(9) or any other provision of law would have to follow the same procedure as law makes no distinction between the event of Return filed & the event of the Return not filed and the same procedure has to be followed by the A.O. to frame assessment in both the eventualities. 17. Therefore, framing of an assessment in the event of non filing of Return of income is to be governed by the same procedure which is prescribed for framing of an assessment in the event of filing the return of income. 18. The Revenue cannot argue that the provisions of section 143(2) hold true only in the cases where the return is filed by the assessee. The procedure prescribed in the event of filing of Return of income will also hold to' the event of non filing of Return of income. Therefore, the assessing Officer is bound in law to assume jurisdiction u/s. 143(2) to frame assessment order whether with the Return of income or without the Return of income and whether u/s 143(3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to the protection of section 150 of I.T. Act, 1961 & this office is bound to protect the Revenue there under. 25. The Office is directed to forward a copy of this order to all the Range In charge who are subject to the jurisdiction of this office for strict guidance and compliance henceforth. A copy of this order is also directed to be forwarded to the officer in charge of the concerned Chief Commissioner of Income Tax in the cases of those ranges with a direction to the concerned officer in that office to place this order to the consideration of the Ld. Chief Commissioners of Income Tax. 26. The appeal of the appellant succeeds and is allowed in terms of the above. It is clarified that the merits of the case has not been considered in this proceedings and the appeal has been decided only with reference to the availability of jurisdiction to frame the assessment order and it is open to the Revenue as well as to the appellant to seek their remedies in law as available under the provisions of Income Tax Act, 1961 and other law as may be applicable to the facts of the case & the A.O. has its jurisdiction on merits of the case protected & available." 8. After perusing the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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