2013 (10) TMI 1294 - AT - Income Tax

Anullment of assessment order passed - requirement of issue of notice u/s 143(2) where return filed in pursuance of notice u/s 148 - Held that - Notice under section 148 of the Act was issued on August 29, 2006. Thereafter notices under sections 143(2) and 142(1) of the Act were issued, in response to which the assessee has also filed an objection with assumption of jurisdiction which was disposed of by the Assessing Officer vide order dated November 26, 2007 and the assessee was asked to file the return of income - after receipt of return in response to notices under sections 148 and 142(1) of the Act, the Assessing Officer is required to issue notice under section 143(2) of the Act for completing the assessment. If the Assessing Officer is failed to issue notice under section 143(2) of the Act, it would vitiate the reassessment proceedings. It makes no difference whether the assessee files a separate return in response to notice under section 148 or 142(1) of the Act or the assessee files a letter stating therein that the return filed earlier may be treated as return filed in response to the notice. Undeniably after filing of the letter by the assessee with a request to treat the return filed under section 139(1) of the Act as the return in response to notice under section 148 of the Act or section 142(1) of the Act, no notice under section 143(2) of the Act was issued by the Assessing Officer and assessment was completed under section 143(3) read with section 147 of the Act. Therefore, the assessment framed by the Assessing Officer without issue of notice under section 143(2) of the Act is invalid and deserves to be annulled. The learned Commissioner of Income- tax (Appeals), following this judgment of the jurisdictional High Court in the case of CIT v. Rajeev Sharma 2010 (5) TMI 600 - ALLAHABAD HIGH COURT , annulled the assessment. - No infirmity impugned order - Decided against Revenue.

Summary

Issues:
1. Deletion of addition of Rs. 12,93,729 on account of suppressed gross receipts.
2. Annulling the order under section 147/143(3) of the Income-tax Act, 1961.
3. Validity of assessment framed by the Assessing Officer.

Analysis:

Issue 1: Deletion of Addition of Rs. 12,93,729
The Department appealed against the deletion of the addition of Rs. 12,93,729 by the Commissioner of Income-tax (Appeals). The Tribunal noted that while the Revenue challenged this deletion, the main issue was the annulment of the assessment by the Commissioner. The Tribunal found that the Commissioner refrained from adjudicating on the grounds taken by the assessee, focusing solely on the validity of the assessment. The Commissioner's decision was based on the judgment in CIT v. Rajeev Sharma, where a similar assessment process was deemed invalid. The Tribunal upheld the Commissioner's decision, citing precedents and confirming the annulment of the assessment.

Issue 2: Annulling the Order under Section 147/143(3)
The core issue revolved around the validity of the assessment conducted by the Assessing Officer. The Tribunal analyzed the sequence of events leading to the assessment, highlighting the failure to issue a notice under section 143(2) of the Act after the assessee's response to earlier notices. Referring to legal precedents, including the case of Asst. CIT v. Hotel Blue Moon, the Tribunal emphasized the mandatory nature of issuing notice under section 143(2) for completing assessments. The judgment in CIT v. Rajeev Sharma further underscored the necessity of such notice, deeming non-issuance as vitiating reassessment proceedings. Consequently, the Tribunal upheld the annulment of the assessment due to the absence of the required notice.

Issue 3: Validity of Assessment Framed by the Assessing Officer
The Tribunal carefully examined the events following the assessee's response to notices under sections 148 and 142(1) of the Act. It emphasized the Assessing Officer's failure to issue a notice under section 143(2) after the assessee's submission, rendering the assessment invalid. Relying on legal principles, the Tribunal affirmed that the absence of notice under section 143(2) vitiated the reassessment process. By aligning with the judgment in CIT v. Rajeev Sharma, the Tribunal upheld the annulment of the assessment, emphasizing the mandatory nature of the notice. The Tribunal dismissed the Revenue's appeal, confirming the annulment of the assessment.

In conclusion, the Tribunal's decision upheld the annulment of the assessment due to the Assessing Officer's failure to issue a mandatory notice under section 143(2), in line with legal precedents emphasizing the essential nature of such notice in reassessment proceedings.