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TMI Blog2023 (6) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... e otherwise within time. 2. Whether the approval granted by the higher authorities for re-opening of the assessment was in accordance with the provisions of the Act. 3. On the facts and circumstances of the case, the Ld. Assessing officer and Ld. CIT(A) ought to have appreciated that education cess on tax payable by the appellant should have been allowed as deduction while computing income of the appellant." 3. We deem it fit to address the additional ground No.1 first. The additional ground raised herein goes to the root of the matter and it being a legal issue not requiring verification of any facts, in view of the decision of the Hon'ble Supreme Court in the case of NTPC Ltd reported in 229 ITR 383, the said additional ground is hereby admitted and taken up for adjudication. In the instant case, the return of income for the A.Y.2016-17 was filed by the assessee on 17/10/2016 and time limit for issuance of notice u/s. 143(2) of the Act expires on 30/09/2017. Before the expiry of time limit for issuance of notice u/s. 143(2) of the Act, the ld. AO issued notice u/s. 148 of the Act on 27/02/2017. Now, the moot question to be decided in this appeal is as to whether the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section shall be sent after the expiry of two years from the end of the assessment year in which the income was first assessable.] (2) Where a return has been made under section 139, or in response to a notice under sub-section(1) of section 142, the Assessing Office shall, if he] considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return : Provided that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished.] 3 ................... 4 .................... " (emphasis supplied). 9. It is an undisputed position before us that on 25.01.2000 when the Assessing Officer issued a notice under Section 148 of the Act to reopen the assessment for Assessment Year 1999-2000, even before the time to issue notice under Section 143(2) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) ............. (b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return;" The aforesaid explanation deals with case where income chargeable to tax escapes assessment including a case where a return of income has been filed, but no assessment has been made. The aforesaid explanation seeks to clarify that merely because no assessment has been made even after filing a return, it will not be open to suggest that no income chargeable to tax has escaped assessment. This covers issue where there is no possibility of making an assessment on the date when the notice under Section 147/148 of the Act is issued. So long as the time to issue notice under Section 143(2) of the Act is available, it cannot be said that no assessment has been made as the possibility of making an assessment is always available. The Assessing Officer is obliged to complete assessment under Section 143(3) of the Act by issuing a notice under Section 143(2) of the Act, if he is of the view that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Apex Court in Rajesh Jhaveri's Stock Brokers (P.) Ltd. case have no application to the present facts, when admittedly the time to issue notice under Section 143(2) of the Act to complete the regular assessment under Section 143(3) of the Act has not expired. 13. Further, we note that the Hon'ble Madras High Court in CIT v. Qatalys Software Technologies Ltd., [2009] 308 ITR 249 in identical fact situation dismissed the Revenue's appeal by holding that where the period of issuing notice under Section 143(2) of the Act has not expired, then reassessment notice under Section 147/148 of the Act was invalid. Nothing has been shown to us as to why the view taken by the Hon'ble Madras High Court is required to be differed from. 14. In the above view, the substantial question of law framed for our consideration is answered in the negative i.e. in favour of the appellant/assessee and against the respondent/Revenue. 15. Accordingly, appeal allowed. No order as to costs." 3.2. Similar views were expressed by the Hon'ble Madras High Court in the case of CIT vs. TCP Ltd., reported in 323 ITR 346, CIT vs. Qatalys Software Technologies Ltd reported in 308 ITR 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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