TMI Blog2022 (3) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the AO to frame the assessment u/s. 144 of the Act is without jurisdiction and for that we rely on the decision in the case of Hotel Blue Moon [ 2010 (2) TMI 1 - SUPREME COURT] wherein it has been held that issuance of notice u/s 143(2) is mandatory for scrutiny assessment even in cases of assessments after search u/s 132 of the Act [Block Assessment]. Since issuance of notice u/s 143(2) is mandatory before scrutiny assessment, even section 292BB of the Act cannot come to the rescue of the AO. And the Hon'ble Madras High Court in the case of CIT vs. C. Palaniapan[ 2006 (2) TMI 103 - MADRAS HIGH COURT] held that issuance of notice u/s 143(2) is mandatory in reassessment cases also. Further, we do not find any merit in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after scrutiny u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) on 28.03.2014 and assessed at a total income of ₹ 30,54,650/- as against the assessee's returned income of ₹ 25,38,380/- filed on 30.09.2011 u/s. 139(1) of the Act. According to Ld. AR, later on the AO issued notice u/s. 148 of the Act on 22.03.2018 conveying his desire to reopen the assessment of the assessee and directing the assessee to file the return of income for AY 2011-12. Pursuant to the notice u/s. 148 of the Act dated 22.03.2018, the assessee filed reply dated 28.03.2014 wherein it requested the AO to treat the original return already filed by the assessee u/s. 139 of the Act dated 30.09.2011 in response to the notice u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 144/147 of the Act, without issuing/serving notice u/s 143(2) of the Act. According to Ld. AR, the AO's action of non-issuing notice u/s. 143(2) of the Act goes to the root of the matter and, therefore, without issuing notice u/s. 143(2) of the Act the AO could not have made assessment u/s. 143/144 of the Act and for that he relied on the decision of this Tribunal in the case of ACIT, Circle-4(1) Vs. M/s. Asiatic Oxygen Ltd., ITA No. 714/Kol/2017 CO No. 43/Kol/2017 order dated 01.07.2019. 4. Per contra, the Ld. DR opposing the contention of the assessee submitted that despite the AO directing the assessee to file the return of income vide notice u/s. 148 of the Act dated 22.03.2018, the assessee did not bother to file the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uant to notice u/s 148/147 of the Act and not any letter written by the assessee to treat the original return of income filed duly u/s 139 of the Act as the return filed pursuant to sec. 147/148 of the Act. According to Ld. Addl. CIT, DR, there is a difference between the letter written by the assessee and the return of income as prescribed by the statute. According to him, this difference between the letter and the return of income should be appreciated to adjudicate this issue. We note that the notice u/s. 148/147 of the Act dated 22.03.2018 pursuant to which the assessee filed letter dated 28.03.2018 requesting the AO to treat the original return filed u/s. 139 of the Act as return in response to notice u/s. 148/147 of the Act. As per se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s without jurisdiction and for that we rely on the decision of the Hon'ble Supreme Court in the case of Hotel Blue Moon (321 ITR 362) wherein it has been held that issuance of notice u/s 143(2) is mandatory for scrutiny assessment even in cases of assessments after search u/s 132 of the Act [Block Assessment]. Since issuance of notice u/s 143(2) is mandatory before scrutiny assessment, even section 292BB of the Act cannot come to the rescue of the AO. And the Hon'ble Madras High Court in the case of CIT vs. C. Palaniapan ( 284 ITR 257(Mad)] held that issuance of notice u/s 143(2) is mandatory in reassessment cases also. Further, we do not find any merit in the argument of the Ld DR that return of income should have been filed and no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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