TMI Blog2020 (12) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee, either u/s 139 or u/s 143(1) or u/s 148 of the Act. In this case, there is no such return filed by the assessee. In view of this, we categorically held that there is no infirmity in the order of the Coordinate Bench in holding that there is no requirement of issue of notice u/s 143 of the Act in the present case. Whether in case the return filed by the assessee as late as in the month of September, 2017 can be treated as valid return or not? - The answer is clearly No as even after 30 days any return of income filed by the assessee would not have been taken cognizance by the Assessing Officer. There is no requirement of the law that if the return is filed any time before Assessing Officer u/s 148 read with 143 (3) of the Act, the Assessing Officer should have been issued notice u/s 143(2). The question will arise then that if the assessee was issued a notice u/s 148 of the Act and he does not file any return of income till the date of framing of the assessment order or also filed a return before passing of the assessment order u/s 143(2) of the Act, then what is the stand Revenue should take? In such case, it is not at all possible that the assessee can contest t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn has been filed in response to notice u/s 148 as in the case of the appellant by following the judgment of the Hon ble Delhi High Court in the case of CIT vs. Madhya Bharat Corporation Ltd(337 ITR 399). Thus from the above it can be inferred that no notice u/s 143(2) was issued by the Ld. AO. And by following the judgment of Hon'ble Delhi High Court in the case of PCIT vs. Shri jai Shankar traders Pvt. Ltd. in ITA 519/2015 and in the case of Alpine Asia Pvt. Ltd vs DGIT (WPC 7932/2010) the assessment made without issue of notice u/s 143(2) is illegal and bad in law. And the judgment of CIT vs. Madhya Bharat Energy Corporation Ltd. relied by the Ld CIT (A) has also been considered in the above judgment of PCIT vs. Shri Jay Shiv Shankar Traders Pvt. Ltd. and distinguished as in this case appeal was not admitted on the question concerning the mandatory compliance with regard to issue of notice u/s 143(2). 5. The mistake lies in failing to consider/ignoring the above arguments/contentions of the AR in the order which leads to an incongruent conclusion, causing serious prejudice to the cause of the appellant. Hence the need for rectification of the same to consider thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order, as the Coordinate Bench held that despite non-issuing the notice u/s 143(2) of the Act the assessment is valid. 4. The Ld. DR submitted that there is no apparent mistake in the order of the Coordinate Bench and the respective decisions have been considered by the Coordinate Bench. The Ld. DR further submitted that the CIT(A) has dealt with this issue in the order dated 15.05.2020. The Ld. DR further stated that there is no requirement of mentioning when the requisite notice has been issued by the Assessing Officer and, therefore, mere non-mentioning of notice u/s 143(2) of the Act cannot invalidate the assessment. The Ld. DR, otherwise, submitted that there is no prejudice caused to the assessee, as the addition on merit has been sent back to the file of the Assessing Officer and the assessee have full opportunity to contest the addition on merit. 5. During the course of hearing of this Miscellaneous Application, the Bench specifically asked the Ld. AR to state as to whether the original return u/s 143(2) of the Income Tax was filed or not. To this, the Ld. AR submitted that the assessee has not filed the original return of income 6. We have carefully hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. Therefore, in this case, the return was available before the Assessing Officer. In the case of Alpine Asia Pvt. Ltd. (Supra), the fact also shows that the assessee has filed original return of income in time and in response to notice u/s 148 of the Act, stated the original return filed may be treated as return in response u/s 148 of the Act. In case of Shri Rajiv Sharma (supra) of the Hon ble Allahabad High Court also speaks about the same facts. Therefore, in all the above judgments cited before us, it was apparent that there was original return available with the Assessing Officer u/s 139(1) of the Act and the assessee has stated that such return filed may be treated as return and response to the notice u/s 148 of the Act. Therefore, even before the expiry of the time limit of 30 days in the issuance of notice u/s 148 of the Act, the Assessing Officer was having return of income and notice u/s 143(2) could have been issued. The Hon'ble High Court in all these judgments has categorically held that in such case notice u/s 143(2) of the Act is mandatory even in case of reopened assessment u/s 147 of the Income Tax Act. Facts in the present case are different and dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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