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TMI Blog2018 (3) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... s directed against the Order of the Ld. Commissioner of Income Tax (Appeals)-I, Noida dated 31.7.2017 pertaining to assessment year 2009-10 on the following grounds:- 1. That the Ld. CIT(A) has erred in law and on facts by annulling the assessment order on ground that no notice under section 143(2) was issued before the completion of assessment under section 144 of the I.T. Act, 1961. 2. That the Ld. CIT(A) has erred in law and on facts by ignoring the facts that no return was filed by the assessee in response to notice u/s. 148 and notice u/s. 143(2) is mandatory, where a return has been furnished u/s. 139, or in response to a notice under sub-section (1) of section 142. 3. That the Ld. CIT(A) has erred in law and on facts by ignoring the facts that as per provision of section 143(2)(ii) there is a time limit for issuance of notice u/s. 143(2) i.e. shall be served on the assessee before the expiry of six months from the end of the financial year in which return is furnished, but in the case under consideration no return was filed by the assessee. 4. That the appellant craves to leave, add, alter and amend any of the grounds of appeal on or before hearing. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue in dispute elaborately at page no. 1 to 7 vide para no. 3 to 26. For the sake of convenience, I am reproducing herewith the relevant findings of the Ld. CIT(A) as under:- 3. The Id. counsel for the appellant at the very beginning raised objections to the jurisdiction of the Ld. A.O. assumed to frame the impugned assessment order on the ground that no notice under section.143(2) of LT. Act, 1961 was issued by the Id. A.O. at any stage in the course of the process to frame the impugned assessment order therefore there was no jurisdiction to frame the impugned assessment order. 4. The Ld. Counsel submitted that law is well settled that without assuming the jurisdiction under section 143(2) of LT. Act, 1961 the A.O. cannot frame the assessment Order the omission on the part of the Ld. A.D. to assume jurisdiction is fatal to the maintainability of the assessment Orders if framed that cannot be cured or rectified by the protection available to the Revenue u/s 292 BB of I.T. Act, 1961. 5. The Ld. Counsel submitted that the jurisdictional High Court has dealt with this issue has held that without assuming jurisdiction u/s 143(2) of I.T. Act, 1961, the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the correct and prescribed procedure if that is not done, the jurisdiction to perform those actions becomes unavaiilable. 12. The domain of section 147 and section 148 of I.T. Act, 1961 is confined to calling for the return of income from the assessee so that the assessing officer can compare the declarations made by the assessee in the Return of income' with the information on his record and decide for further course of action. Once the Return of income is filed pursuant to notice u/s. 148 the domain of such notice stands discharged and no proceeding remains pending. For the sake of the argument it can be stated on behalf of the Revenue that there will be no difficulty in the cases where the Return of income is filed by the assessee pursuant to the issue of notice u/s. 148 but what procedure is required to be followed where there is non- compliance of the said notice and the assessee fails to file the Return of income in compliance to the notice issued u/s. 148 of I.T. Act, 1961. 13. This situation, however, is merely hypothetical. Non-compliance of notice .u/s. 148 will merely give rise to a cause of action to call for the Return of income further under the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction under the other domain. 15. Under the scheme of law as legislated by Parliament, assessment can be framed only after assuming jurisdiction under section 143(2) of I.T. Act, 1961 whether the Return of income is filed by the assessee or not filed and whether the assessment is framed under section 143(3) or section 144 of LT. Act, 1961 or whether pursuant to Return filed or not filed u/s 139(1) or u/s 148 or not filed despite receiving notices therein. 16. The Rule of Construction of statute is well settled and wherever a legal act is contingent upon compliance of a particular act or is to be done in a particular manner, non-compliance of the said act or the said procedure will also be cause of action for the same consequential action in law, i.e., framing of assessment order which is consequence of the Return of income filed by the assessee being contingent upon the assumption of jurisdiction by the A.O. u/s 143 (2) of I.T. Act, 1961, the framing of the assessment order in the event of non-filing of Return of income whether an its own motion or in the vent of notices issued by the A.O. calling for filing of Return of income whether u/s 142(1) or 148 or 139(9) or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction of the Id. A.O. to frame the impugned assessment order are therefore, valid in law. 23. However, the provisions of section 150 of LT. Act, 1961 are available to the protection of Revenue and the Ld. Counsel very fairly submitted that his client has no objection to this office protecting the Revenue u/s 150 of I.T. Act, 1961 directing the Ld. A.G. to reframe the assessment qua the present appeal after following the due applicable procedure. 24. Therefore, the impugned assessment order is deleted for being void ab- initio subject to the protection of section 150 of LT. Act, 1961 with the directions to Id. A.O. to reframe the assessment order after following the correct applicable procedure in the law and after giving the reasonable opportunity of being heard to the appellant, as impugned assessment order though, bad in law was framed well within the time permitted under the limitation provisions under the I.T. Act, 1961 therefore the Revenue is entitled to the protection of section 150 of I.T. Act, 1961 this office is bound to protect the Revenue there under. 25. The Office is directed to forward a copy of this order to all the Range In charge who ar ..... 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