TMI Blog2020 (8) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer what we found is that the order sheet entries do not contain any entry regarding the issuance of notice under section 148 on 30/3/2015, nor about the service thereof, in as much as subsequent to the entry regarding the recording of reasons on 20/3/2015, the next entry is dated 3/6/2015 and the order sheet silent as to the proceedings that it took place on 30/3/2015. Under order V, rule 17 of the code of civil procedure, the affixation can be done only when the assessee or his agent refuses to sign the acknowledgement or could not be found; whereas in this matter is not the case of the Revenue that the assessee is not traceable or anyone representing the assessee refused to receive the notice or to sign the acknowledgement thereof. In the circumstances we are of the considered opinion that the decision of the Hon ble Apex Court in the case of M/s I-Ven interactive Ltd [ 2019 (10) TMI 785 - SUPREME COURT] has no application to the facts of the case. Non Service of notice under section 143 - conjointly reading of section 148 (1) of the Act with section 139 (4) of the Act and section 144 of the Act makes it abundantly clear that pursuant to the notice under section 148 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany did not file any return of income for the assessment year 2010-11. 3. Notices under section 148 and 142(1) of the Act, were therefore, issued. On 29/12/2015, a letter was filed on behalf of the assessee along with the acknowledgement of return of income for the assessment year 2010-11 dated 4/12/2015, declaring nil income. Assessee requested for reasons recorded and the same are furnished. Subsequently, by way of letter dated 7/3/2016 the assessee requested for the approval of the JCIT for the opening of the case. Assessing officer observed that in this case, the provisions of section 151(1) of the Act were not applicable, as the case falls within 4 years, and there was no need to take any prior permission from the JCIT. Assessee challenged before the, learned Assessing Officer, that the assessment proceedings initiated under section 147 of the Act are illegal and void as no permission as per provisions of section 151 of the Act were taken before issuing of notice. 4. Learned Assessing Officer did not accept the contention of the assessee and proceeded with the assessment proceedings. It was noticed that the assessee engaged in raising capital by way of share capital and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrespondingly increasing the loan and share capital of other companies and, therefore, addition of ₹ 25,07,50,000/- made under 68 of the Act was justifiable. So also, Ld. CIT(A) upheld the addition made under section 14A of the Act. Consequently, Ld. CIT(A) dismissed the appeal of the assessee. 6. Aggrieved by the findings of the Ld. CIT(A), assessee preferred this appeal initially challenging the assessment order passed under section 147/144 of the Act on the ground that it was bad under law for non-compliance with the requirement under section 148 of the Act in respect of proper service of notice, and also the observations of the Ld. CIT(A) that the assessee was not interested in prosecuting the appeal. Subsequently assessee filed additional grounds of appeal, pleading that no notice under section 143(2) of the Act was issued and therefore, the assessment cannot be sustained. Assessee placed reliance on the edition of the Hon ble Apex Court in the case of NTPC Ltd vs. CIT (1998) 229 ITR 383 for the principle that the Tribunal has wide powers in admitting the additional ground, since the purpose of assessment before the taxing authorities is to assess correctly the, tax l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nished the return of income on 4/12/2015 in response to the notice issued and section 148 of the Act, but in spite of the said fact, learned Assessing Officer never issued in a notice under section 143(2) of the Act, nor any discussion was made in the assessment order. Ld. AR submitted that in view of the decisions of the Hon ble Supreme Court in the case of CIT vs. Laxman Dass Khandelwal 417 ITR 325 and of Hon ble Delhi High Court in the cases of PCIT vs. Silver line 383 ITR 455, CIT vs. Delhi Kalyan Samiti in ITA No. 696/2015, PCIT vs. Atlanta capital private limited in ITA No. 665/2015, PCIT vs. Shri Shawshankar traders 383 ITR 448 and PCIT vs. Paramount Biotech industries Ltd 398 ITR 701, any such assessment so framed without issuance of notice under section 143(2) of the Act is illegal and without jurisdiction. 10. Per contra, it is the submission of the Ld. DR that the affixture of notice under section 148 of the Act was done at the last known address of the assessee because the new address of the assessee was furnished by the assessee by way of letter along with copy of form number 18 in respect of change of address only on 18/3/2016, which was subsequent to the issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities below do not suffer any legality regularity and there is no need to interfere with the same. 13. We have gone through the record, in the light of the submissions made on either side. It is an admitted fact that the notice under section 148 of the Act was issued by the learned Assessing Officer on 30/3/2015 and claimed to have served the same by way of a fixture at the old address. Revenue pleads that it was only subsequent to the issuance of notice under section 148 of the Act the assessee furnish the new address vide letter dated 18/3/2016; whereas the contention of the assessee is that as on 30/3/2015 they have already communicated the change of address to the assessing officer, and this fact is borne on record. Assessee places reliance on the intimation under section 143(1) of the Act for the assessment year 2013-14 issued on 7/3/2014 at a new address which is to be found on the snapshot of MCA record, which was furnished by the learned Assessing Officer himself. 14. Copy of the intimation under section 143(1) of the Act dated 7/3/2014 for the assessment year 2013-14 is furnished at page number 1 to 4 of the paper book. It clearly establishes that as on 7/3/2014, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no denial of the fact pleaded by the assessee that the assessee was being assessed by the ITO, Ward No. 5 (3) till the assessment year 2013-14 and the return of income for the assessment year 2013-14 was also filed before the, Ward number 5 (3). 17. The other circumstance that is brought to our notice by the Ld. AR and on verification of the order sheet entries made by the learned Assessing Officer what we found is that the order sheet entries do not contain any entry regarding the issuance of notice under section 148 on 30/3/2015, nor about the service thereof, in as much as subsequent to the entry regarding the recording of reasons on 20/3/2015, the next entry is dated 3/6/2015 and the order sheet silent as to the proceedings that it took place on 30/3/2015. Further, under order V, rule 17 of the code of civil procedure, the affixation can be done only when the assessee or his agent refuses to sign the acknowledgement or could not be found; whereas in this matter is not the case of the Revenue that the assessee is not traceable or anyone representing the assessee refused to receive the notice or to sign the acknowledgement thereof. In the circumstances we are of the considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen from the assessment order, that the return of income filed on 4/12/2015 had to be treated as invalid. On the other hand, learned Assessing Officer took cognizance of the return of income so filed by the assessee and proceeded to complete the assessment with the additions in question. Arguments of Ld. DR on this aspect is not supported by the assessment order. 21. The argument that in cases where the assessee failed to file the return of income for the relevant assessment year within the time prescribed in the notice issued under section 148 of the Act, the said return would be invalid one and has to be ignored by the learned Assessing Officer, in which case, no notice under section 143(2) of the Act is required to be issued to the assessee and the assessment framed under section 144 of the Act would be valid - was considered by the Hon ble jurisdictional High Court in the case of CIT vs. Delhi Kalyan Samiti (supra). In that case, the Hon ble Court held that, 9. It is now well established that if the AO does not accept the return filed by the Assessee on its face and he is required to issue a notice under Section 143(2) of the Act and provide an opportunity to the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no denial of the fact that by letter dated 29/12/2015, in response to the notice dated 12/6/2016 under section 142 (1) of the Act issue to the assessee, the assessee submitted before the, learned Assessing Officer that the return of income filed on 4/12/2015 was in response to the notice issued and section 148 of the Act. When once the assessee submitted so that in response to the notice under section 148 of the Act the return dated 4/12/2015 was filed, it is incumbent upon the learned Assessing Officer, if at all, he proceeds to frame the assessment under section 144/143(3) of the Act, to issue notice under section 143(2) of the Act, without which, in the assessment framed would not be legal. 24. For the reasons recorded in the preceding paragraphs, we find it difficult to uphold the impugned orders on both the counts, namely, improper service of notice under section 148 of the Act and also for want of service of notice under section 143(2) of the Act. It follows that the assessment order dated 28/3/2016 under section 147/144 of the Act cannot be sustained. We, therefore, quash the same. 25. In the result, appeal of the assessee is allowed. Order pronounced in the open c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
