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TMI Blog2020 (12) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. In the said appeal, the assessee has taken 10 grounds of appeal, which have been reproduced by the Hon'ble Tribunal in para-2 of the order. 3. That the order suffers from mistakes, which are apparent from record of the Hon'ble Tribunal, discussed in detail below and hence the need to rectify the same as may be required under the circumstances. 4. Mistakes in the order which are apparent from record: (a) In Para 10, the Hon'ble ITAT while deciding the ground of Appeal number 3, with regard to illegality of the assessment order as no valid notice u/s 143(2) has been issued by the assessing officer, has held that "from the perusal of the records, the Ld.CIT(A) AR could not point out that the notice was not duly served up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the judgment of CIT vs. Madhya Bharat Energy Corporation Ltd. relied by the Ld CIT (A) has also been considered in the above judgment of PCIT vs. Shri Jay Shiv Shankar Traders Pvt. Ltd. and distinguished as in this case appeal was not admitted on the question concerning the mandatory compliance with regard to issue of notice u/s 143(2). 5. The mistake lies in failing to consider/ignoring the above arguments/contentions of the AR in the order which leads to an incongruent conclusion, causing serious prejudice to the cause of the appellant. Hence the need for rectification of the same to consider this factual background and to consider the submissions of the Ld. AR made on 05/03/2020 as enumerated above. Prayer. It is therefore, pray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case, the notice u/s 148 was issued on 30th March, 2017 and the assessee has filed his return of income in response to the above notice on 23/9/2017. The Ld. AR further submitted that the order of the assessment has also been passed u/s 144 of the Act on 26th December, 2017. The Ld. AR, therefore, submitted that in view of the decision of the Hon'ble Delhi High Court in PCIT vs. Shri Jai Shanker Traders Pvt. Ltd. in ITA No. 519/2015 and in case of Alpine Asia Pvt. Ltd. vs. DGIT (WPC 7932/2010), this issue was allowed. The Ld. AR also submitted that the Hon'ble Allahabad High Court in case of CIT vs. Rajeev Sharma (336 ITR 678) has also allowed this issue. The notice u/s 143(2) should have been issued prior to the passing of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch 2017. The assessee did not file any return of income within the prior limit of 30 days as stated in the notice u/s 148 of the Act. However, undoubtedly the assessee filed his return of income on 23rd September, 2017. Admittedly, also no notice in this case u/s 143(3) of the Act was also issued. On these facts of the case, it is required to be determined whether notice is required to be issued u/s 143(2) of the Act or not?. In fact, when Section 148 notice was issued to the assessee, the assessee was given time for 30 days to file the return of income. The assessee neither filed original return u/s 139(1) of the Act nor filed any return in response to the notice u/s 148 of the Act within the time given by the Assessing Officer. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee has filed original return of income in time and in response to notice u/s 148 of the Act, stated the original return filed may be treated as return in response u/s 148 of the Act. In case of Shri Rajiv Sharma (supra) of the Hon'ble Allahabad High Court also speaks about the same facts. Therefore, in all the above judgments cited before us, it was apparent that there was original return available with the Assessing Officer u/s 139(1) of the Act and the assessee has stated that such return filed may be treated as return and response to the notice u/s 148 of the Act. Therefore, even before the expiry of the time limit of 30 days in the issuance of notice u/s 148 of the Act, the Assessing Officer was having return of income a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est that notice u/s 143(2) should have been issued, in all such cases where reassessment is required to be made. The onus of filing of return of income on the assessee is a responsibility which is cast upon him to be fulfilled by him, if he fails to take benefit of any of the provisions of law the assessee cannot plea that he will not comply with the law and not follow time limit before the Assessing Officer and the Assessing Officer he is duty bound to follow the law even in belated compliance by the assessee.
9. In view of the above findings, we do not find any merit in the Miscellaneous Application. Hence, same is dismissed.
Order pronounced in the Open Court on this 15th Day of December, 2020. X X X X Extracts X X X X X X X X Extracts X X X X
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