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TMI Blog2019 (3) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) That having regard to the fact and circumstances of the case, Ld. C1T (A) has erred in law and on facts in confirming the action of Ld. AO in framing the impugned reassessment order as the assessment order was passed without complying with the mandatory conditions of section 147 to 151 of the Income Tax Act, 1961 and without recording valid reasons as per law and without obtaining valid approval as per law and in any case reopening of the assessment and framing of the reassessment order was contrary to law. 2) That in any view of the matter and in any case, action of Ld.CIT(A) in confirming the action of Ld. AO in reopening of the impugned assessment u/s 143(3)/147 is bad in law and against the facts and circumstances of the case. 3) That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in upholding the action of the Ld. A.O. in framing the impugned reassessment in u/s 143(3)/147 of the Act, and that too without issuing / serving the mandatory notice u/s 143(2) within the statutory allowable period and more so by not fulfilling the requirements of the provisions of law. 4) That in any view of the matter and in any case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(2) of the Act within the statutory allowable period and more so by not fulfilling the requirements of the provisions of law. During the hearing, ld. counsel for the assessee stated that the assessee filed its return of income on 24.4.2008 declaring total income of ₹ 2,94,083/-. The AO started the proceedings u/s. 147 of the Act after recording the reasons on 26.3.2015 and accordingly issued notice u/s. 148 of the Act to the assessee on 26.3.2015. But the assessee did not appear and has also not filed return in response to the same. AO has issued notice u/s. 142(1) for 23.6.2016, 15.7.2015, but again assessee did not appear nor filed any return. Due to change of jurisdiction again notice u/s. 142(1) was issued on 12.8.2015 fixing the case for 26.8.2015 which was received by the assessee and in response to the same the AR of the assessee appeared on 12.8.2015 and filed power of attorney, copy of ITR alongwith computation and requested to treat the original return filed in response to the notice u/s. 148 of the Act. He draw my attention towards page no. 14 which is the copy of the notice u/s. 148 of the Act dated 26.3.2015 and also the page no. 16 which the copy of the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter recording the reasons on 26.3.2015 and accordingly issued notice u/s. 148 of the Act to the assessee on 26.3.2015. But the assessee did not appear and has also not filed return in response to the same. AO has issued notice u/s. 142(1) for 23.6.2016, 15.7.2015, but again assessee did not appear nor filed any return. Due to change of jurisdiction again notice u/s. 142(1) was issued on 12.8.2015 fixing the case for 26.8.2015 which was received by the assessee and in response to the same the AR of the assessee appeared on 12.8.2015 and filed power of attorney, copy of ITR alongwith computation and requested to treat the original return filed in response to the notice u/s. 148 of the Act. After perusing the Paper Book especially the page no. 14 which is the copy of the notice u/s. 148 of the Act dated 26.3.2015; page no. 16 which the copy of the notice u/s. 143(2) of the Act dated 12.8.2015 and also page no. 17 which is the copy of the reply filed by the AR of the assessee dated 07.9.2015 in which the assessee has filed some documentary evidence which the copy of income tax return alongwith computation of income for AY 2008-09, copy of Audit Report for the FY 2007-08 and copy of Aud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice was mistakenly mentioned as 23rdMarch, 2000. Assuming the aforesaid to be true, the notice was served on the Authorized Representative simultaneously on his filing the return which clearly indicates that the notice was ready even prior to the filing of the return. The provisions of s. 143(2) make it dear that the notice can only be served after the AO has examined the return filed by the assessee. Whereas it is dear that when the assessee came to file the return, the notice under s. 143(2) was served upon the Authorized Representative by hand. Thus, it would amount to gross violation of the scheme of s. 143(2). 5.1.1. And the conclusion is as under : Assessment made in pursuance of a notice under section 143(2) issued on 23rd March, 2000 when the return was filed on 27th March, 2000 is invalid. 5.2 The ITAT, Delhi in the case of Shri Harsh Bhatia, New Delhi vs. ITO, Ward-50(3), New Delhi in ITA.No.1262 and 1263/Del./2017 dated 17.10.2017 has held as under : 10. It was further argued by the ld. counsel for the assessee Dr. Rakesh Gupta that notice u/s 143(2) of the Act, was issued on 17.09.2014 and which is the same date on which return was filed. This is appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee by hand when the Authorized Representative of the assessee came and filed return. However, the date of the notice was mistakenly mentioned as 23rd March, 2000. Assuming the aforesaid to be true, the notice was served on the Authorized Representative simultaneously on his filing the return which clearly indicates that the notice was ready even prior to the filing of the return. The provisions of s. 143(2) make it dear that the notice can only be served after the AO has examined the return filed by the assessee. Whereas it is dear that when the assessee came to file the return, the notice under s. 143(2) was served upon the Authorized Representative by hand. Thus, it would amount to gross violation of the scheme of s. 143(2). 5.1. And the conclusion is as under : Assessment made in pursuance of a notice under section 143(2) issued on 23rd March, 2000 when the return was filed on 27th March, 2000 is invalid. 6. He has submitted that the same order have been followed by ITAT, Delhi Bench, in the case of Shri Harsh Bhatia, New Delhi vs. ITO, Ward-50(3), New Delhi in ITA.No.1262 and 1263/Del./2017 dated 17.10.2017 in which the Tribunal held as under : 10. It was furt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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