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TMI Blog2015 (6) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT (A) has erred in law and on facts in allowing assessee's appeal by holding that the assessment was invalid because no notice u/s 143(2) was issued within the prescribed time, without appreciating the fact that the assessee in response to notice issued u/s 148 of the IT Act 1961 did not file any return of income and informed that the return originally filed on 06.08.2002 may be treated as return filed in compliance to the notice u/s 148 of the IT Act 1961. Since no return was filed in response to notice u/s 148, the issue of fresh notice u/s 143(2) of the Act was not mandatory. Reference to Hon'ble Allahabad High Court in the case of CIT Vs. Shri Rajeev Sharma [2010] 192 Taxman 197 (Alld.) is erroneous as the facts of this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the addition of Rs. 41,76,419/- made on account of unexplained investment u/s 69 of the IT Act 1961, without appreciating the fact that the A.O. was constrained to pass assessment order u/s 144 of the I.T. Act 1961, in absence of compliance by the assessee. The proofs and on the basis of information gathered from Investigation Wing as a result of enquiries made with respect to transactions of M/s CMS Securities Ltd account, was informed to the assessee but he failed to discharge his onus as required as per provisions of section 69 of the IT Act 1961. 5. That the appellant craves leave to amend any one or more of the grounds of the appeal as stated above as and when need for doing so may arise. 6. That the order of the Ld. CIT (A) des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the paper book. It was pointed out that it is noted by the Assessing Officer that the assessee filed reply wherein he demanded for the production of broker and the assessee is directed to file the copy of return with all annexures as demanded earlier vide order sheet entry dated 18/01/2007. The next date fixed is 16/08/2007 for answer to notice dated 05/09/2006. He submitted that this order sheet entry should be considered as notice issued by the Assessing Officer u/s 143(2) and same is within time because even as per the assessee, the return was filed on 15/09/2006 and therefore, notice u/s 143(2) can be issued till 31/08/2007. 5. We have considered the rival submissions. In our considered opinion, the order sheet entry dated 03/08/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Delhi High Court in the case of CIT v. Pawan Gupta (supra) was subject-matter of appeal by the revenue before the Hon'ble Supreme Court which has been disposed of with the case, namely, CIT v. Hotel Blue Moon" (2010) 188 Taxman 113, wherein their Lordships have upheld the view taken by the Delhi High Court. Their Lordships of Apex Court in the said case have clearly observed that where the assessing officer in repudiation of the return filed proceeds to make an inquiry, he has to necessarily follow the provisions of section 142, sub sections (2) and (3) of section 143. The relevant observations are reproduced below: "The case of the revenue is that the expression so far as may be apply indicates that it is not expected to fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 158BC by referring to section 143(2) and (3) would appear to imply that the provisions of section 143(1) are excluded. But, section 143(2) itself becomes necessary only where it becomes necessary to check the return, so that where block return conforms to the undisclosed income inferred by the authorities, there is no reason, why the authorities should issue notice under section 143(2). However, if on assessment is to be completed under section 143(3) read with section 158BC, notice under section 143(2) should be issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under section 143(2) cannot be a procedural irregularity and the same is not curable and, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ECAUSE on a due consideration of facts and circumstances of the case as were available on record, particularly that (a) the credits aggregating Rs. 41,76,419/- as appearing in the bank account no. SB9308 with Union Bank of India, Generalganj Branch, Kanpur were attributable to well defined sources (as noted by the Assessing Officer himself in para 3 of the assessment order) (b) such credits stood self proved and no further information was required to be given by the assessee; the ld. CIT(A)-2 Kanpur should have held, for the sake of completeness of disposal of appeal, that even on merits, no addition was called for and justified. 2. BECAUSE the letter of law of section 69 stood fully complied with, and on the facts of the case the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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