9911796707
TMI Blog2018 (10) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... the A.Y. 2010-11 vide order dated 19/03/2015 under section 143(3) read with section 147 of the Income Tax Act, 1961 (hereinafter 'the Act'). 2. The first issue in this appeal of assessee is against the order of CIT(A) confirming the action of the AO in upholding the assessment order which is bad in law as no notice under section 143(2) of the Act was issued, after filing of return of income in pursuant to notice under section 148 of the Act. For this assessee has raised the following additional grounds: - "1. The reassessment proceedings is bad in law as no notice under section 143(2) of the Income-tax Act, 1961 ('the Act') was issued after filing the return of income on 23 May 2013 pursuant to notice issued under section 148 of the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 148 of the Act dated 01.04.2013, which was served on assessee on 08.04.2013, filed a letter dated 23.05.2013 stating that return originally filed be treated as return filed in response to notice under section 148 of the Act. According to the learned Counsel no notice under section 143(2) of the Act was issued after the filing of return by assessee i.e. vide letter dated 22.05.2013 which was received in the office of the ACIT, Central Circle-45, Mumbai on 23.05.2013. It means that the return of income was filed on 23.05.2013 in response to notice under section 148 of the Act. The learned Counsel for the assessee now before us stated that when no notice under section 143(2) of the Act, which is a jurisdictional notice, is issued to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - "to The Asst. Comm. Of Income Tax Central Circle-45, Mumbai Ref: Sudhir Menon AY 2010-11 Sub Notice under section 143(2) rws 148 Sir, With reference to your notice under section 143(2) read with section 148, we have to submit that return already filed be treated as filed in response to Notice under section 149. Hope your honour will find this in order. Thanking you." 6. We find from the facts of the case that notice under section 148 of the Act dated 1.04.2013 and AO before filing of return by assessee in response to this notice, a notice under section 143(2) of the Act dated 03.05.2013 requiring the assessee to attend the office on 13.05.2013. Up to this date no return of income was filed by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. The ITAT, after relying on the judgment of the Apex Court in R. Dalmia v. CIT [1999] 236 ITR 480/102 Taxman 702, came to the conclusion that issuance of notice under Section 143(2) was mandatory. The ITAT has taken into consideration the relevant provisions and has also taken into consideration the judgment of the Apex Court and relying on the said judgments, the ITAT has held that notice under Section 143(2) is mandatory and in the absence of such service, the Assessing Officer cannot proceed to make an inquiry on the return f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee on 27.03.2000 and the notice under Section 143(2) was served upon the Authorized Representative of the assessee by hand when the Authorized Representative of the assessee came and filed return. However, the date of the notice was mistakenly mentioned as 23.03.2000. 7. Assuming the aforesaid to be true, the notice was served on the Authorized Representative simultaneously on his filing the return which clearly indicates that the notice was ready even prior to the filing of the return. Section 143(2) of the said Act clearly indicates that where a return has been furnished under Section 139, or in response to a notice under Section 142(1), the Assessing Officer shall- (i) Where he has reason to believe that any claim of loss, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Tribunal has already returned a finding that the notice was issued on 23.03.2000. That being the case, no interference with the impugned order is called for." 9. In view of the fact that notice under section 148 of the Act dated 1.04.2013 was issued and AO before filing of return by assessee in response to this notice, a notice under section 143(2) of the Act dated 03.05.2013 requiring the assessee to attend the office on 13.05.2013 was also issued. Up to this date i.e. 13.05.2013 no return of income was filed by the assessee in response to notice under section 148 of the Act. According to us, in view of consistent view of jurisdictional High Court and Delhi High Court, in the absence of pending return of income, the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
