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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 ..... 143(2) on 05/09/2006 cannot be considered as notice after filing the return of income. Since no further notice u/s 143 (2) was issued by the Assessing Officer, we are of the considered opinion that this issue is covered in favour of the assessee by the judgment of Hon'ble Apex Court rendered in the case of ACIT vs. Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT OF INDIA]. - Decided in favour of assessee. - ITA No.177/LKW/2012 - - - Dated:- 6-2-2015 - Shri Sunil Kumar Yadav And Shri A.K. Garodia JJ. For the Appellant : Shri C. P. Singh, D. R. For the Respondent : Shri S. K. Garg, Advocate Shri P. K. Kapoor, C.A. ORDER Per A. K. Garodia, A.M. The appeal is filed by the Revenue and the Cross Objection is filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment to be invalid and at the same time deleting the addition of ₹ 41,76,419/- made on account of unexplained investment u/s 69 of the IT Act 1961, without appreciating the fact that even after being provided opportunities by issue of notices u/s 142(1) and 144 of the IT Act, the assessee did not furnish desired proof to explain the sources of investment made. 3. That Ld. CIT (A) has erred in law and on facts in holding the assessment to be invalid and thus deleting the addition of ₹ 41,76,419/- made on account of unexplained investment u/s 69 of the IT Act 1961, without appreciating the fact that valid proceedings u/s 147 of the IT Act 1961 were initiated by the A.O. and on request of the assessee the copy of reasons were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) on the same page that on 15/09/2006, the assessee filed return, inter alia, stating that the original return filed on 06/08/2002 may kindly be treated as the return filed in compliance of above notices and further sought the reasons to believe for reopening of the assessment. He further submitted that in view of these facts, the notices issued by the Assessing Officer on 05/09/2006 cannot be accepted as a notice issued after filing of return of income by the assessee because the return was filed on 15/09/2006 and no notice u/s 143(2) was issued by the Assessing Officer after this date and therefore, CIT(A) is perfectly right as per which it was held by him that the assessment framed by the Assessing Officer is not valid because no pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within a period of 12 months from the end of the month in which the return was filed by the assessee. In the present case, the return was filed on 15/09/2006 by way of filing of letter before the Assessing Officer to the effect that the original return filed by the assessee should be treated as return filed in compliance to notice u/s 148 of the Act. Hence, it has to be taken that the return in question was filed by the assessee on 15/09/2006 and therefore, notice issued by the Assessing Officer u/s 143(2) on 05/09/2006 cannot be considered as notice after filing the return of income. Since no further notice u/s 143 (2) was issued by the Assessing Officer, we are of the considered opinion that this issue is covered in favour of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arily to follow the provisions of section 142, sub-sections (2) and (3) of section 143. Their Lordships have observed that 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, therefore, the requirement of notice under section 143(2) cannot be dispensed with. The relevant observations are as under: An analysis of this sub-section indicates that after the return is filed, this clause enables the assessing officer to complete the assessment by following the procedure like issue of notice under section 143(2)/142 and complete the assessment under section 143(3). This section does not provide for accepting the return as provided under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice u/s 143(2) was issued by the Assessing Officer after 15/09/2006, we find no reason to interfere in the order of CIT(A) on this issue because in the absence of any valid notice by the Assessing Officer u/s 143(2) after filing of Return of Income, the issue stands squarely covered in favour of the assessee by the judgment of Hon'ble Apex Court rendered in the case of Hotel Blue Moon (supra). Therefore, respectfully following this judgment of Hon'ble Apex Court, we decline to interfere in the order of CIT(A) on this issue. Ground No. 1 is rejected. 7. In view our decision with regard to ground No.1 of appeal, the other grounds raised by the Revenue do not call for any adjudication because when the assessment itself is not va ..... X X X X Extracts X X X X X X X X Extracts X X X X
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