TMI Blog2023 (6) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings would cease to be pending either by passing of an order under Section 143(3) of the Act or by expiry of time to issue a notice under Section 143(2) of the Act, to complete an assessment under Section 143(3) of the Act. So long as the above event has not passed, the Assessing Officer cannot render the provision of Section 143(2) of the Act redundant/otiose by issuing a notice for reopening an assessment under Section 147/148 - Decided in favour of assessee. - ITA No.4604/Mum/2018 - - - Dated:- 16-11-2022 - SHRI M.BALAGANESH, ACCOUNTANT MEMBER AND SMT KAVITHA RAJAGOPAL, JUDICIAL MEMBER For the Assessee : Shri Dharmesh Shah For the Revenue : Smt. Mahita Nair ORDER PER M. BALAGANESH (A.M): This appeal in ITA No.4604/Mum/2018 for A.Y.2016-17 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-48, Mumbai in appeal No.CIT(A)-48/I.T.-102/DCCC-2(4)/2017-18 dated 27/06/2018 (ld. CIT(A) in short) against the order of assessment passed u/s. 147 r.w.s. 143(3)of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 31/12/2017 by the ld. Dy. Commissioner of Income Tax, Central Circle 2(4), Mumbai (hereinafter referred to as l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act to issue reopening notice is not circumscribed/hedged in by the fact that the Assessing Officer has not completed the assessment under Section 143(3) of the Act. In support, he placed reliance upon the decision of the Hon'ble Apex Court in Asstt. CIT v. Rajesh Jhaveri Stock Brokers (P.) 8. Before dealing with the rival contentions, it may be useful to reproduce Section 143 of the Act as existing, when notice dated 25.01.2000 was issued under Section 147/148 of the Act and it read as under : 143[(1) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, (i) if any tax or interest is found due on the basis of such return, after adjustment of any tax deducted at source, any advance tax paid, any tax paid on self-assessment and any amount paid otherwise by way of tax or interest, then, without prejudice to the provisions of sub-section (2), an intimation shall be sent to the assessee specifying the sum so payable, and such intimation shall be deemed to be a notice of demand issued under section 156 and all the provisions of this Act shall apply accordingly; and ii) Provided that except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d provided the time to take further proceeding by issuing notice under Section 143(2) of the Act to complete assessment under Section 143(3) have already expired. So long the time is available to complete an assessment under Section 143(3) of the Act after having issued intimation under Section 143(1) of the Act, there can be no occasion for the Assessing Officer to have reason to believe the income chargeable had escaped assessment, for the reason that the Assessing Officer can issue notice under Section 143(2) of the Act, to complete assessment under Section 143(3) of the Act. Thus, it is a power vested in the Assessing Officer to disturb a concluded issue within a specified period by reopening an assessment. Therefore, it cannot be exercised till the period for completion of assessment has expired. Section 147/148 of the Act is not a power to be exercised to abort the regular assessment proceeding by issuing notice for reopening an assessment. The proceedings under Section 147/148 are not parallel to regular assessment proceedings under Section 143(2) (3) of the Act. 11. The impugned order relies upon Explanation 2(b) to Section 147 of the Act to sustain the reopening no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in the context of the contention of the assessee that an Assessing officer cannot initiate reassessment proceedings, where intimation under Section 143(1) has been issued and the Revenue failed to take steps to issue notice under Section 143(2) and complete assessment under Section 143(3) of the Act. The aforesaid contention was negatived in the above referred para on the ground that in the context of the facts before it, the time to issue notice under Section 143(3) of the Act had expired. It is only thereafter that the Assessing Officer could have reason to believe that the income chargeable to tax has escaped assessment. It is in such cases that the Assessing Officer would not be prohibited under Section 147/148 of the Act from seeking to recover tax on income which has escaped assessment. It is clear that no reassessment proceedings can be initiated so long assessment proceedings on the basis of return of income filed by the assessee is pending. The assessment proceedings would cease to be pending either by passing of an order under Section 143(3) of the Act or by expiry of time to issue a notice under Section 143(2) of the Act, to complete an assessment under Section 143(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er having reason to believe that income of the assessee had escaped assessment should be fully complied with. The decision of the Hon ble Supreme Court did not deal with a case where Section 148 notice was issued prior to expiry of time limit for issuance for notice u/s. 143(2) of the Act. Hence, the decision relied upon by the ld. DR is factually distinguishable. We further find that the said decision of the Hon ble Supreme Court had been duly considered by the Hon ble Jurisdictional High Court in the case referred to supra. Hence the reliance placed on the said decision of Hon ble Supreme Court by the revenue does not advance the case of the revenue. In view of the same, we hold that re-assessment framed in the instant case is hereby quashed. Accordingly, the additional ground No.1 raised by the assessee is allowed. 3.4. In view of the aforesaid decision of additional ground No.1, the other two additional grounds raised by the assessee and the original grounds raised by the assessee are hereby left open and no opinion is given hereunder. 4. In the result, appeal of the assessee is allowed. Order pronounced on 16/11/2022 by way of proper mentioning in the notice board. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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