TMI Blog2021 (3) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... rtmental appeal cannot change the fate of Departmental appeal, the appeal of Revenue would not be maintainable and is liable to be dismissed on this ground alone. From the date of such letter it would be deemed that assessee filed the return of income under section 148 and as such the A.O. shall have to issue notice under section 143(2) for completion of the assessment accordingly and limitation would be counted from the date of filing of the letter before A.O. in this regard. CIT(A) on verification of the record also found that no notice under section 143(2) is found on record maintained by the A.O. which proves that A.O. has not issued any statutory notice under section 143(2). Therefore, assumption of jurisdiction by the A.O. was totally invalid and bad in Law and as such the same was correctly quashed by the Ld. CIT(A). Reference to provisions of Section 282BB - CIT(A) after examining the record, correctly found the contention of assessee to be correct which fact is further strengthened by the notice of the A.O. under section 142(1) of the I.T. Act Dated 20.10.2014 which is also referred to by the A.O. in the re-assessment order in which the A.O. has called for the expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income was filed, there was no occasion to issue notice u/s 143(2) of the I.T. Act, 1961. 2. That the Ld. CIT(A) has erred in law by ignoring the provisions of section 282BB of the Income Tax Act, 1961 and quashing the assessment order u/s 147/144. 3. That the Ld. CIT(A) has erred in in law and facts of the case by ignoring that the case was reopened based on the new facts and evidences that were brought to the light in the survey action u/s 133A and on findings made during the earlier assessment proceedings. 5. The brief facts of the case as noted in the impugned order are that original assessment for the assessment year under appeal was completed under section 143(3) read with section 153C on 26.12.2011 at a total income of ₹ 4,54,03,440/- as against the returned income of ₹ 12,073/- only which, inter alia, included protective addition of ₹ 1,02,70,000/- as unexplained share application money and ₹ 3,43,30,095/- as unexplained other deposits in the Bank account of the assessee. During the course of First Appellate Proceedings against the original assessment completed, the assessee challenged the action of the A.O. for assumption of juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) challenging the assumption of jurisdiction under section 147/151 of the I.T. Act and that the re-assessment order have been framed without serving mandatory notice under section 148, 143(2) and 142(1) of the I.T. Act, 1961. 5.3. The Ld. CIT(A) referred to various decisions relied upon by the assessee in the written submissions which are reproduced in the impugned order. The Ld. CIT(A) as regards the assumption of jurisdiction under section 147/148 of the I.T. Act and sanction granted under section 151 of the I.T. Act, after examining the record found that it is not a case where no return of income was filed by assessee as per provisions of Section 139 of the I.T. Act, 1961, as original return was filed by the assessee under section 139(1) on Dated 31.08.2007. The Ld. CIT(A) found that nothing has been brought on record by the A.O. in the reasons recorded as to how and what income has escaped assessment by the reason of the failure on the part of the assessee. No tangible material was also found to initiate the proceedings against the assessee. the Ld. CIT(A) also observed that once assessment have been quashed under section 153C of the I.T. Act, Law does not permit to reope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 144 which has not been done by the AO in the present case. Therefore, also the assessment so completed without issuance of notice u/s 143(3) does not empower the AO to complete an assessment u/s 143(3) or u/s 144 of the Act. Hon'ble Supreme Court in the case of ACIT Anr Vs. Hotel Blue Moon 321 ITR 362 held that the provisions of section 142 and subsections (2) and (3) of section 143 would have mandatory application in a case where the Assessing Officer in repudiation of return filed in response to a notice issued under section 158BC(a) proceeds to make an inquiry. Similarly when a return is filed u/s 147 assessment cannot be completed u/s 143(1) of the Act, and it is mandatory to complete the assessment u/s 143(3). Hon'ble ITAT, New Delhi in the case of Mohinder Kumar Chhabra Vs. Income Tax Officer, in [2014] 48 taxmann.com 120 held after considering the judgment of the Hon'ble Delhi High Court in the case of Alpine Electronics Asia Pvt. Ltd. v. Director General of Income-tax [2012] 341 ITR 247/205, that assessment completed under section 147 without issue of notice under section 143(2) would be invalid. 8.10. In view of my above observations and respectfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income filed by you for the A.Y. 2007-2008. He has, therefore, submitted that it is not in dispute that assessee filed letter before A.O. requesting the A.O. to treat the original return of income filed in response to the notice under section 148 of the I.T. Act, therefore, when A.O. has not issued any notice under section 143(2) of the I.T. Act, therefore, re-assessment order have been rightly quashed by the Ld. CIT(A). 8. We have considered the rival submissions. It is not in dispute that assessee filed original return of income under section 139(1) of the I.T. Act on 31.08.2007. It is also not in dispute that original assessment was completed under section 143(3) read with Section 153C of the I.T. Act, 1961, which have been quashed by the Ld. CIT(A) because the satisfaction arrived by the A.O. was not based on documents found and seized from the premises of the person searched. The A.O. accordingly initiated the re-assessment proceedings against the assessee. The A.O. issued notice under section 148 of the I.T. Act and framed the impugned assessment order. The Ld. CIT(A) on the issue of assumption of jurisdiction under section 147 of the I.T. Act has specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at assessee filed the return of income under section 148 and as such the A.O. shall have to issue notice under section 143(2) of the I.T. Act, 1961 for completion of the assessment accordingly and limitation would be counted from the date of filing of the letter before A.O. in this regard. The Ld. CIT(A) on verification of the record also found that no notice under section 143(2) of the I.T. Act, 1961 is found on record maintained by the A.O. which proves that A.O. has not issued any statutory notice under section 143(2) of the I.T. Act, 1961. Therefore, assumption of jurisdiction by the A.O. was totally invalid and bad in Law and as such the same was correctly quashed by the Ld. CIT(A). 10. The Revenue in Ground No.2 has referred to provisions of Section 282BB of the I.T. Act, 1961 which does not exist in the statute. However, we may refer to Section 292BB of the I.T. Act, 1961 in which notice may be deemed to be valid in certain circumstances, however, such provision will also not apply when notice under section 143(2) have not been issued against the assessee. The Ld. CIT(A) after examining the record, correctly found the contention of assessee to be correct which fact is fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
