2011 (10) TMI 480 - HC - Income Tax

Assessment u/s 143(3) made without issue of notice u/s 143(2) after receipt of return in response to a notice u/s 148 - Revenue contended that order in question is a best judgment assessment passed u/s 144, for which no notice u/s 143(2) is contemplated under law - Held That -When an order of assessment is made u/s 144 on the ground that the assessee having made a return failed to comply with all the terms of the notice issued u/s 143(2), when no such notice is issued, even if that order is said to have been passed u/s 144 is void ab initio as being contrary to the aforesaid the statutory requirement. On alternative contention of Revenue that return was filed beyond time it is held that When AO has passed the order taking into account the return filed thus it is too late for revenue to contend that order passed u/s 144 ignoring the return in which event no notice u/s 143(2) is required - Decided in favor of assessee.

Summary

Issues:
Validity of assessment order under Section 143(3) without issuing notice under Section 143(2) after receipt of return in response to notice under Section 148.

Analysis:

Issue 1: Validity of Assessment Order under Section 143(3)
The High Court analyzed the case where the Tribunal set aside the assessment order due to the absence of a notice under Section 143(2) after the receipt of the return in response to a notice under Section 148. The Revenue contended that the order was a best judgment assessment under Section 144 and no notice under Section 143(2) was required. However, the Court noted that the order explicitly mentioned Section 143(3) and the additions made to the income. The Court highlighted that for a best judgment assessment under Section 144, a notice under Section 143(2) is necessary if the assessee fails to comply with the terms of the notice. As the notice was not issued, the assessment order was deemed void ab initio. The Court dismissed the appeal, stating that no substantial question of law arose in the case.

Issue 2: Compliance with Statutory Requirements
The Court emphasized the importance of complying with statutory requirements in making assessments. It noted that the Assessing Authority did not issue a notice under Section 143(2) despite the assessee filing a return. The Court rejected the revenue's argument that the return was invalid due to being filed beyond the time, as it was not raised earlier. The Court highlighted that the Assessing Authority had considered the return and made additions based on it, without mentioning any issues with the timing of the return. Therefore, the failure to issue a notice under Section 143(2) rendered the assessment order void ab initio.

In conclusion, the High Court upheld the Tribunal's decision, emphasizing the necessity of following statutory procedures in assessments. The Court ruled that the assessment order made under Section 143(3) without issuing a notice under Section 143(2) was invalid, leading to the dismissal of the appeal.