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TMI Blog2020 (1) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... into field of whether notice under section148/142(1) of the Act was issued to the assessee, at present. We are deciding the preliminary issue that where the assessee had furnished the return of income and paid taxes due thereon, then the order of the CIT(A) suffers from infirmity in applying the provisions of section 249(4)(b) of the Act. The case of the assessee falls within the provisions of section 249(4)(a) of the Act, hence it was incumbent upon the CIT(A) to decide the issue on merits and not dismiss the appeal in limine . Accordingly, it is deem fit to remit the issue back to the CIT(A) to decide the issue raised on merits after allowing reasonable opportunity of hearing to the assessee. The assessee is also directed to comply w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, Ld. CIT(A) has erred in law and on facts in not quashing the impugned reassessment order passed by Ld. A.O without assuming jurisdiction as per law and without complying with mandatory conditions u/s 147 to 151 as envisaged under the Income Tax Act, 1961. 4. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not quashing the impugned reassessment order passed by Ld. AO on the ground that mandatory notices u/s 148, 142(1), 143(2) and show cause notice were not served upon the assessee. 5. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in passing the impugned order and that too witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. Vide para 10 of the appellate order, the CIT(A) notes that the appeal is being decided with reference to form no.35, the impugned assessment order and the paper book filed by the assessee. Another point which was noted was that there was no dispute between the parties that no return of income was filed in response to notice under section 148 of the Act nor under section 142(1) of the Act. The Assessing Officer also had not issued any notice under section 143(2) of the Act. Vide para14 and 15, the CIT(A) notes the provisions of section 249 of the Act and hold vide para 16 that under the provisions of section 249(4)(b) of the Act, where the assessee had not filed the return of income, then the appeal of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that in the case of the assessee, it had filed the return of income along with computation of income and had paid the taxes due and hence, the provisions of section 249(4)(b) of the Act were not applicable. The Ld. AR for the assessee pointed out that the order of the CIT(A) suffers from infirmity in this regard, in not taking into account, the statement of facts filed in the form no.35 itself. He further pointed out that the further observations of the CIT(A) in paras 87 to 108 at pages 46 to 54 of the appellate order were unnecessary and not warranted. 8. The Ld. DR for the Revenue fairly pointed out that the stand of the assessee of having filed the return of income may be verified. 9. On pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled before the CIT(A), copy of which has also filed before us wherein the particulars are as under:- 1. Copy of paper book filed by assessee before Ld. CIT(A):- a) Copy of acknowledgment of return filed on 31/03/2011 for AY 2010-11. b) Copy of Bank statement of assessee for the impugned year. c) Copy of approval accorded under section151 along with the reasons recorded d) Copy of notice under section148 dated AY 2011-12 e) Copy of notice under section142(1) dated 08/08/2017 and 04/09/2017. f) Copy of the application filed by assessee under RTI g) Copy of reply dated 26/02/2018 received in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48/142(1) of the Act was issued to the assessee, at present. We are deciding the preliminary issue that where the assessee had furnished the return of income and paid taxes due thereon, then the order of the CIT(A) suffers from infirmity in applying the provisions of section 249(4)(b) of the Act. The case of the assessee falls within the provisions of section 249(4)(a) of the Act, hence it was incumbent upon the CIT(A) to decide the issue on merits and not dismiss the appeal in limine . Accordingly, it is deem fit to remit the issue back to the CIT(A) to decide the issue raised on merits after allowing reasonable opportunity of hearing to the assessee. The assessee is also directed to comply with the notices issued by the CIT(A). We decide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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