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TMI Blog2011 (11) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 vide which the assessee was required to file the return of income for the assessment year 2007-08 by 20th Dec. 2007. According to the AO, the assessee did not make any compliance of notice u/s 142(1) dated 16-08-07 and hence notice u/s 142(1) was issued on 5th Oct. 09 vide which the assessee was required to file the requisite details but such details remained un-complied with. The AO in his order has mentioned that 05 notices u/s 142(1) were issued in this case on 16-08-07, 30-03-09, 5-10-09, 26-10-09 and 30-11-09. No compliance was made in respect of all the five notices issued by the AO. According to the AO, the assessee filed the return on 27-03-08 which was beyond the time allowed to him vide notice issued u/s 142(1) of the Act. The return was treated as invalid and non est. Since the assessee has not provided the information as required vide notice u/s 142(1), therefore, the AO completed the assessment u/s 144 of the Act. 2.3 The ld CIT(A) was of the opinion that the assessee cannot exercise the option u/s 139(4) because the assessee has not filed the return within time allowed by the AO vide notice dated 16-08-07 u/s 142(1) of the Act. The ld CIT(A) therefore, held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chellappan [2006] 281 ITR 444 (Mad.) 5. CIT v. Cebon India Ltd. [2010] 229 CTR 188/[2009] 184 Taxman 290 (Punj. & Har.) 6. CIT v. Vishnu & Co. (P.) Ltd. [2009] 319 ITR 151/[2010] 187 Taxman 316 (Delhi) 7. Rajkumar Chawla v. ITO [2005] 94 ITD 1/145 Taxman 12 (Delhi)(SB) 8. Asstt. CIT v. Baikunth Nath Singhal [2004] 89 ITD 109 (Agra) 9. Kamal Kishore Modi v. ITO [2005] 142 Taxman 113 (Jodh.)(Mag.) 10. Mrs. C. Malathy v. ITO [2004] 88 ITD 37 (Chennai) 11. Pravin Balubhai Zala v. ITO [2010] 129 TTJ 373/[2011] 7 ITR (Trib.) 375 (Mum.) 12. Dy. CIT v. K.M. Sugar Mills Ltd. [2011] 53 DTR (Luck.)(Trib.) 172 2.6 The ld. AR further submitted that the assessment u/s 144(1)(b) can be made in case the assessee fails to comply with all the terms of notice issued u/s 142(1) of the Act. No such conditions exist in the instant case, The assessee has complied with some of the terms of the notice. The part compliance will preclude the assessment u/s 144 of the Act. The assessee has duly responded to the notice vide letter dated 9th Dec. 2009. 2.7 On the other hand, the ld DR submitted that the AO issued the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding a statement of all assets and liabilities of the assessee, whether included in the accounts or not) as the Assessing Officer may require: Provided that-- (a) the previous approval of the Joint Commissioner shall be obtained before requiring the assessee to furnish a statement of all assets and liabilities not included in the accounts; (b) the Assessing Officer shall not require the production of any accounts relating to a period more than three years prior to the previous year. 143. (2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,- (i) where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim ; (ii) notwithstanding anything contained in clause (i), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee was having a right to file the return within one year from the end of the relevant assessment year as he has failed to file the return within the time allowed u/s 142(1) of the Act. The return cannot be treated as invalid or non est. We therefore, hold that the return filed on 27-03-08 is a valid return as per the provisions of Section 139(4) of the Act. Notice u/s 143(2) is to be issued in case the return has been furnished u/s 139 or in response to notice u/s 142(1) because Section 143(2) refers to Section 139 only. Notice u/s 143(2) can be issued within a period of six months from the end of the financial year in which the return has been filed. Thus in the instant case, notice u/s 143(2) was required to be issued before 30-09-2008 it is not the case of Revenue that notice u/s 143(2) was issued. It is true that Section 142 authorizes the AO to issue notice for the purpose of making an assessment. Under Section 143(3), the assessment is also to be made after issue of notice u/s 143(2). The issue before us is as to whether the AO can issue notice u/s 142(1) in a case where he has not issued notice u/s 143(2) within the time limit available u/s 143(2) of the Act. One has to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 142 of the Constitution, which empowers the court to pass any order in a case in order to do "complete justice." 2.11 Following the same analogy, we feel that whatever is not possible to be done directly u/s 143(2) cannot be done u/s 142(1) of the Act. Thus the AO cannot issue notice u/s 142(1) for the purpose of making an assessment after filing of the return after the time limit of issuance of notice u/s 143(2) of the Act has expired. Since no notice u/s 143(2) has been issued therefore, the return filed is to be accepted and no assessment u/s 143(3) or u/s 144 can be made. 2.12 The Delhi bench in the case of. Dr. K.C. Verma (supra) has observed as under:- ''Enquiry notice u/s 142(1) can be issued only if the AO either has validly assumed the jurisdiction to make the assessment or can validly issue jurisdiction to assess after making enquiry u/s 142(1). Therefore, it may be impliedly inferred that if the power to assess is lost by the expiry of limitation period, the notice u/s 142(1) cannot be issued. The jurisdiction to assess can be assumed only within the four corners of provisions of Section 143. The provisions of sub-section (2) of this section clearly provides that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has erred in confirming the addition on account of long term capital gain arising out of sale of agricultural land though the same was not a capital asset within the provisions of Income Tax Act, 1961. 3.2 We have heard both the parties. Before the ld CIT(A), the assessee filed the certificate from Gram Panchayat to show that the land was situated beyond the distance of more than 8 KM of the municipal limit. The Gram Panchayat is not an authority to issue such a certificate. The certificate was to be obtained from the Revenue authorities like Tehsildar etc. We therefore, feel that the issue is required to be restored back on the file of the AO but the assessee should be given an opportunity to file the evidence to show that the land is situated beyond 8 KM of municipal limit. 4.1 During the course of hearing, the ld. AR of the assessee has not pressed the Ground No. 3. Hence, the same is dismissed being not pressed. 5.1 The fourth grievance of the assessee is that the ld. CIT(A) has erred in not directing the deduction u/s 54 of the Act though the assessee invested Rs. 15 lacs in purchasing of agricultural land out of sale proceeds. 5.2 We have heard both the parties. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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