TMI Blog2020 (3) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Member For the Assessee : Sh. Avinash Gupta, CA For the Revenue : Ms. Parul Singh, Sr. DR. ORDER These 03 separate appeals filed by the Revenue emanate out of the respective Orders passed by the Ld. CIT(A)-I, Noida pertaining to assessment years 2010-11 2009-10. Since the issues involved in these appeals are common and identical, hence, the appeals were heard together and are being decided by this common Order for the sake of convenience, by dealing with ITA No. 3701/DEL/2018 (AY 2010-11) and the result thereof will apply mutatis mutandis to other two Revenue Appeals No. 3702/Del/2018 (AY 2010-11) ITO VS. SATISH GAUTAM 3164/Del/2018 (AY 2009-10) ITO VS. LOKESH KUMAR SHARMA. 2. The grounds raised in the Revenue s Appeal No. 3701/DEL/2018 (AY 2010- 11) read as under:- 1. That the Ld.CIT(A) has erred in law and on facts by annulling the assessment order on the ground that no notice under section 143(2) was issued before the completion of assessment. 2. That the Ld. CIT(A) has erred in law and on facts by ignoring the facts that no return was filed by the assessee in response to notice under section 148 and notice uls 143(2) is only mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is referred to in that sub-section relates to an assessment year in respect of which an assessment, reassessment or recomputation could not have been made at the time the order which was the subject-matter of the appeal, reference or revision, as the case may be, was made by reason of any other provision limit ing the time within which any action for assessment, reassessment or recomputation may be taken. 7. That the Ld. CIT(A) has erred in law and on facts by annulling the assessment order ignoring the fact as noted by Hon'ble ITAT, Delhi Bench 'E', New Delhi vide its order in ITA No. 267/Del.l2013 [A.Y. 2002-03] in the case of ITO Ward-13(2), New Delhi Vs. M/s Neetee Clothing (P) Ltd., 6/28, Shanti Niketan, New Delhi, in which it has been amply clarified when the provisions of section 150 of the Act may be enacted. In the referred order (supra), it has been explained on this issue as under: We find that the provisions of sub-section (1) shall not apply where the reassessment proceedings would have been barred by time even at the time when the order, which was the subject-matter of appeal, revision, etc., was passed. In other words, sub-section (2) provides a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issues Hon'ble ITAT, Delhi Bench 'SMC', New Delhi vide order dated 30/10/2017 in ITA No.43101De1/2017 in the case of Sh. Sachin S/o Late Sh. Bhule Singh Village -Mamura, Sector-66, Pargana Tehsil - Dadri, Noida ( PAN-APPPK6176F) for A.Y.2008-09 has allowed the appeal of the Revenue. 5. That the Ld. CIT(A) has erred in law and on facts by directing the Assessing officer to reframe the assessment order under the provisions of section 150 of the I.T. Act, 1961 as in the instant case revival of assessment u/s 150 will not be applicable due to the provisions of sub-section (2) of section 150. This is due to the fact that this case pertains to the assessment year 2010-11 and assessment order, which is subject matter of appeal , revision was passed on 12/12/2017.The provision of sub-section (1) of section 150 shall not apply in this case as action for assessment! reassessment proceedings would have been barred by time when the assessment order, which was subject matter of appeal, was passed in the light of provisions of sub section (2) of section 150. For clarity section 150 is reproduced as hereunder: 150(1): Notwithstanding anything contained in section 149, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuing of a notice for assessment or reassessment for a particular assessment year had become time-barred at the time of the order, which was the subject-matter of the appeal, the provisions of section 150(1) cannot be invoked for making an assessment or reassessment. 8. The appellant craves to leave, add, alter and amend any of the grounds of appeal on or before hearing. 9. That the order of the Ld. CIT(A) deserves to be set-aside and the order of the AO be restored. 4. The grounds raised in the Revenue s Appeal No. 3164/DEL/2018 (AY 2009- 10 read as under:- 1. That the Ld.CIT(A) has erred in law and on facts by annulling the assessment order on the ground that no notice under section 143(2) was issued before the completion of assessment. 2. That the Ld. CIT(A) has erred in law and on facts by ignoring the facts that no return was filed by the assessee in response to notice under section 148 and notice uls 143(2) is only mandatory, where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section.142 or in response to notice uls 148 of the I.T. Act, 1961, whereas in this case no return was filed. 3. That the Ld. CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that sub-section relates to an assessment year in respect of which an assessment, reassessment or recomputation could not have been made at the time the order which was the subject-matter of the appeal, reference or revision, as the case may be, was made by reason of any other provision limit ing the time within which any action for assessment, reassessment or recomputation may be taken. 7. That the Ld. CIT(A) has erred in law and on facts by annulling the assessment order ignoring the fact as noted by Hon'ble ITAT, Delhi Bench 'E', New Delhi vide its order in ITA No. 267/Del.l2013 [A.Y. 2002-03] in the case of ITO Ward-13(2), New Delhi Vs. M/s Neetee Clothing (P) Ltd., 6/28, Shanti Niketan, New Delhi, in which it has been amply clarified when the provisions of section 150 of the Act may be enacted. In the referred order (supra), it has been explained on this issue as under: We find that the provisions of sub-section (1) shall not apply where the reassessment proceedings would have been barred by time even at the time when the order, which was the subject-matter of appeal, revision, etc., was passed. In other words, sub-section (2) provides a rider as if in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he arguments advanced by him and therefore, the issues in dispute may be set aside to the file of the Assessing Officer to verify the facts and to frame the assessment Denovo , as per law, after giving adequate opportunity of being heard to the assessee. 7. On the contrary, Ld. Counsel for the assessee has not raised any objection on the request of the Ld. DR for setting aside the issues to the file of the AO, as per law, after giving adequate opportunity of being heard to the assessee, by adopting the prescribed procedures. 8. I have heard both the parties and perused the orders of the revenue authorities especially the impugned order passed by the Ld. CIT(A). I find that Ld. DR stated that no notice under section 143(2) of the Act was issued before the completion of assessment. I further find that Ld. DR has stated that no return was filed by the assessee in response to notice under section 148 and notice u/s. 143(2) of the Act is only mandatory, where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142 or in response to notice u/s. 148 of the I.T. Act, 1961, whereas in this case no return was filed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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