9911796707
TMI Blog2013 (11) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued to the assessee. 3. The brief facts of the case are that originally the assessee filed return of income showing total income NIL on 25.11.2003. The return was processed under section 143(1) on 27.01.2004. A survey was conducted on 26.12.2008. During the course of survey, credit of Rs.13,09,283/- was outstanding in the name of M/s. Kothari & Sons which was surrendered as additional income by the assessee for the A.Y. 2003-04 and a revised return declaring surrendered income was filed on 29.12.2008. In order to regularise the revised return filed by the assessee, the A.O. issued notice under section 148 of the Act on 21.01.2009. The A.O., after considering the assessee's submission, computed the total income as under :- (Page no.6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct can be served up to 6 months from the end of the Financial Year in which the return is filed. In the case under consideration, the return of income was furnished on 29.12.2008. Accordingly, notice under section 143(2) of the Act could be served up to 30.09.2009 but it was issued on 16.11.2009 and served on 17.11.2009. The CIT(A) followed the order of I.T.A.T. Agra Bench passed in the case of Narendra Singh v. ITO in ITA No.317/Agr/2010 for A.Y.2001-02, where in it has been held that the issue of notice under section 143(2) within the prescribed time limit is mandatory. The CIT(A) has followed the above order of I.T.A.T., Agra Bench and deleted the addition holding that notice under section 143(2) has been held to be a non-curable defect, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee on 29.1.2008 is not a valid revised return. It is also admitted fact that after the issue of notice under section 148 of the Act, the assessee did not file any return or made submission that the original return filed may be treated as return filed against the notice under section 148 of the Act. Further no notice under section 142(1) of the Act issued by the A.O. for furnishing return of income. 6. Now, it is to be seen whether under the circumstances, is there any requirement of issuing notice under section 143(2) of the Act. For the purpose of ready reference, section 143(2) is reproduced as below:- "143(1) ......... (2) Where a return has been furnished under section 139, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 139 or (2) the return to be furnished in response to notice under sub-section (1) of section 142 of the Act. In the case under consideration, neither assessee furnished the so-called revised return of income under section 139 nor it was furnished in response to notice under sub-section (1) of section 142. Return filed on 29.12.2008 is invalid return. Thus, both conditions are not applicable in the case under consideration. From the facts of the case and above discussion, it is admitted fact of the case that the so-called revised return is not a return furnished under section 139 of the Act nor the A.O. asked under section 142(1) to furnish return of income. Section 148(1) of the Act is also relevant to be examined. For the purpose of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice: Provided further that in case- (a) where a return has been furnished during the period commencing on the 1st day of October, 1991 and ending on the 30th day of September, 2005, in response to a notice served under this section, and (b) subsequently a notice has been served under clause (ii) of sub-section (2) of section 143 after the expiry of twelve months specified in the proviso to clause (ii) of sub-section (2) of section 143, but before the expiry of the time limit for making the assessment, reassessment or recomputation as specified in sub-section (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is admitted fact that the assessee did not furnish return in compliance to notice under section 148 of the Act nor it was stated that the original return filed be taken as return in response to notice under section 148 of the Act. In the case under consideration, the so-called revised return has been filed on 29.12.2008 which is not a valid revised return in the eyes of law but at the most that may be information for the basis of issue of notice under section 148 of the Act. Since no valid return is filed under section 148, 139 or 142, therefore, period of issue of notice under section 143(2) as per proviso to section 143(2) cannot be counted which is to be reckoned from furnishing of return. We accordingly hold that there is no return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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