TMI Blog2002 (10) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... That the Ld. CIT(A) has erred in not following his appellate order dated 23-3-1995 in A.No. 83/ ACIT/IC/ Alld./93-94 where he himself had directed to pass an order under section 143(3) in accordance with the provisions of section 44AC in this case, and which had become final. Accordingly, the Ld. CIT(A) was not justified in annulling the assessment order passed under section 143(3) dated 30-3-1995. 3. That the Ld. CIT(A) has failed to appreciate the fact that the assessment was completed within the time limit provided under section 153 of the LT. Act and proviso to section 143(3) cannot debar completion of assessment in such cases. 4. That the order of the CIT(A) being bad in law may be set aside and the order of the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 143(2) after the expiry of 12 months from the end of month in which the return of income has been filed. Since the notice has been served on the assessee on 24-1-1995 after the expiry of 12 months from the end of the month in which return of income was furnished, the CIT(A) held that the assessment order passed by the AO is not valid. The return of income was filed on 22-4-1993 and, therefore, notice under section 143(2) should have been served by the AO on the assessee on or before 30-4-1994, whereas the same was served on the assessee on 24-1-1995. 4. It is argued by the ld. DR that the assessment was made by the AO under section 147 of the Income-tax Act as the income of the assessee has escaped assessment for failure of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO while passing order under section 147 has given effect to the order of the CIT(A) dated 21-3-1995. 5. The ld. Counsel for the assessee, on the other hand, relied on the order of the CIT(A). It is also stated that the order of the CIT(A) dated 21-3-1995 has not been mentioned in the assessment order of the AO under consideration and, therefore, the question of giving effect to that order does not arise. 6. We have considered the facts of the case, rival submissions and the material on record. The AO has power to issue notice under section 148 if he is satisfied that income chargeable to tax has escaped assessment. There is no dispute that the assessee has filed his return of income on 27-3-1992, which was barred by limitation and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss and until it is proved that the provisions of section 143(2) are not applicable for the purpose of making assessment, it cannot be said that the provisions of the Income-tax Act are not applicable to the return of income filed under section 148 as if such return were a return required to be furnished under section 139. In case of return filed under section 139, the AO is required to issue notice under section 143(2) or 142(1) for the purpose of making assessment. Therefore, for making assessment of the escaped income also either the AO should accept the return of income under section 143(1)(a) by way of intimation under section 143(1) or make assessment under section 143(3) if he considers necessary or expedient to ensure that assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO himself has issued notice under section 143(2) and now he cannot say that notice under section 143(2) was not required and it was given only for the purpose of giving opportunity of hearing to the assessee. There is no other provision in the Act under which the hearing can be given to the assessee except the provisions of section 143(2) and 142(1) for the purpose of making assessment. Since the AO has issued notice under section 143(2), he was bound by the period prescribed under the proviso to section 143(2) and since he has not served on the assessee a notice under section 143(2) within the period prescribed under the proviso to section 143(2), the assessment framed by the AO is not valid and the CIT(A) was justified in cancelling th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) dated 21-3-1995 while framing assessment order on 30-3-1995. The contention of the ld. DR does not seem to be correct because there is no evidence to show that the order dated 21-3-1995 of the CIT(A) was received by the AO on or before 30-3-1995. The AO has not mentioned any fact about the order dated 21-3-1995 in his assessment order dated 30-3-1995 and, therefore, the question of giving effect to this order does not arise. The AO has nowhere mentioned in the assessment order dated 30-3-1995 that he is giving effect to the order of the CIT(A) dated 21-3-1995. Therefore, the contention of the ld. DR that the AO has given effect to the order of the CIT(A) dated 21-3-1995 cannot be accepted. 11. In the result, the appeal of the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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