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TMI Blog2013 (1) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... hout satisfying such a requirement when the original assessment was not made after scrutiny. So much is plainly clear from statutory provisions Tribunal therefore, committed an error in striking down the reassessment merely on this ground. Notice u/s 148 was issued without issuing notice u/s 143(2) - Held that:- The return filed by the petitioner was not taken in scrutiny. No assessment, thus, took place. The Assessing Officer without any assessment, merely issued an intimation under section 143(1) of the Act accepting such return. In that view of the matter, it cannot be stated that the Assessing Officer formed any opinion with respect to any of the aspects arising in such return. In such a case, scope for reopening such assessment und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d return was filed on 12.10.1999 declaring total income of Rs.1,8,27,162/-. Such return was processed under section 143(1) of the Act. No scrutiny assessment was undertaken. Subsequently, however, the Assessing Officer issued notice under section 148 of the Act on 6.7.2004 for reopening the assessment calling upon the assessee to file return. The assessee vide his letter dated 10.7.2004 requested that return already filed earlier be treated as one filed in response to such notice. Thereafter, notice under section 143(2) of the Act was issued. Hearing took place from time to time. The Assessing Officer framed assessment on 27.3.2006 computing total income at Rs.1,04,41,320/-. The assessee carried such assessment order in appeal before the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith respect to such return of income. 4. We are of the opinion that both the grounds recorded by the Tribunal are wholly unsustainable. The first ground suffers from misapplication of statutory provisions. It is an admitted position that original assessment was accepted under section 143(1) of the Act without any scrutiny. That being the position, the requirement of proviso to section 147 that in order to reopen the assessment beyond period of four years from the end of relevant assessment year, the condition of income having escaped assessment due to the failure on part of the assessee to disclose truly and fully all material facts, was not required to be established. Revenue even beyond four years could have reopened the assessment with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such contention was rejected in the following manner : 10. This brings us to the second limb of the petitioner's challenge namely, that the power under section 147 of the Act cannot be exercised to circumvent the proceedings under section 143(3) of the Act because the notice under section 143(2) of the Act has become time barred and further that in any case, reasons recorded would not permit the Assessing Officer to reopen the assessment. 11. It is undoubtedly true that proviso to section 143(2) of the Act prescribes a time limit within which such notice could be issued. It is equally well settled that such notice is mandatory and in absence of notice under section 143(2) of the Act within the time permitted, scrutiny assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entirely different. It was noticed that after 1.4.1989, the provisions contained in section 143 underwent substantial changes. It was noticed that the intimation under section 143(1) of the Act is given without prejudice to the provisions of section 143(3) of the Act and though technically the intimation would be deemed to be demand notice under section 156, that did not per se preclude the right of the Assessing Officer to proceed under section 143(2)(a) of the Act. The Apex Court observed that the word intimation as substituted for assessment carried different concepts. It was observed that while making an assessment, the Assessing Officer is free to make any addition after granting an opportunity to the assessee. The Apex Court observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the loss or depreciation if he has reason to believe that any income chargeable to tax has escaped assessment for any assessment year. This power to reopen assessment is available in either case, namely, while a return has been either accepted under section 143(1) of the Act or a scrutiny assessment has been framed under section 143(3) of the Act. A common requirement in both of cases is that the Assessing Officer should have reason to believe that any income chargeable to tax has escaped assessment. 6. On both the counts, therefore, Tribunal committed a legal error. 7. On 25.9.2012, noticing this prima facie aspect of the matter, we had issued notice for final disposal of the appeal. Accordingly these appeals are disposed of striki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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