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TMI Blog2021 (3) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(2) notice; going by the assessee or by the earlier notice issued before the assessee's revised return dt.16.11.2015 shall continue to hold the field, we find that the same is no more res integra as per learned co-ordinate bench s decision [ 2017 (6) TMI 1344 - ITAT CHENNAI ] is no more res integra. Learned co-ordinate bench has held in other words that such an issuance of fresh section 143(2) notice is a condition precedent going by the honourable apex court land mark decision in Hotel Blue Moon case [ 2010 (2) TMI 1 - SUPREME COURT ] We adopt the very reasoning mutatis mutandis to accept the assessee's additional substantive grounds 20 to 25. The impugned assessment stands annulled therefore. Ordered accordingly. All other rival pleadings in assessee's and Revenue s cross appeals on merit are rendered infructuous as the necessary corollary. - Shri S.S. Godara, Judicial Member And Shri Laxmi Prasad Sahu, Accountant Member For the Assessee : Shri P. Murali Mohan Rao. For the Revenue : Shri Sunil Kumar Pandey (D.R.) ORDER PER SHRI S.S. GODARA, J.M. : These assessee s and Revenue s cross appeals for Asst. Year 2014-15 arise from the Commissioner of Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax(Appeals) ought to have directed the AO to reduce the amount of Capital Gain admitted by appellant in 2015-16 while working out capital gain in 2014-15 from the transaction of land in question. 10. The Ld. Commissioner of Income Tax(Appeals) ought to have well appreciated that taxing up the capital gain entirely in 2015-16 without considering the portion of capital gain will lead to taxing up twice a single element of income.tal gain admitted in 2015-16. 11. Without prejudice to the other grounds, the Ld.AO while passing the consequential order erred in not allowing deduction u/s. 54F for a sum equivalent to the investment made for a sum of ₹ 4,15,26,440/ - but restricting the same to ₹ 2,99,24,880 as was claimed by assessee originally in AY 2014-15. 12. The Ld. Commissioner of Income Tax(Appeals) ought to have fairly appreciated the factual position that, basing on the sale deed dt: 27.08.2014, the liability to capital gain tax arose to the assessee in A Y 2015-16 and that the assessee had admitted capital gains tax and paid taxes in the A Y 2015-16, which was filed on 30.08.2015 before the present assessment was passed on 31.12.2016. 13. The Ld. Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f hearing. 4. The assessee has also filed its petition dt.18.12.2021 seeking to raise the following additional ground Nos.20 to 23 : 20. As per the ratio laid down by the Hon'ble Supreme Court of India in the case of National Thermal Power Co. Ltd vs. CIT (1998) 229 ITR 383 (SC) the IT AT has jurisdiction to examine the I General Ground question of law though not arisen before the CIT (A) but has arisen before the ITAT for the first time. 21. The Ld. CIT(A) ought to have appreciated the fact that revised return filed on 16.11.2015 replaces the original return filed on 31.07.2014 and notice u/s 143(2) should be issued on the revised return filed. 22. The Ld. CIT (A) ought to have appreciated the fact that notice u/s 143(2) of the Act is mandatory and it can be issued only upon examination of return filed and since no notice u/s 143(2) was issued within time prescribed, assessment is liable to be annulled. 23. The CIT(A) ought to have appreciated the fact that the notice u/s 143(2) is issued in respect of a particular return of income and not for a particular assessment year. 5. Learned AR submitted during the course of hearing that these additional grounds raise a purely legal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which states that the pending proceedings, in respect of the original return, shall abate or will automatically get invalidated with the filing of the revised return, by the appellant. If the argument of the appellant is accepted, then, the same will lead to an absurd proposition and to defeat the pending legal proceedings, all that the assessee will have to do is to file a revised return and say that the revised return has substituted the original return and, therefore, the pending scrutiny assessment proceedings initiated, on the basis of the original return, no longer survive. 7.2 As the revised return is filed within the due date and valid, it completely substitutes the original return filed u/s.139(1). The meaning of this is that both the returns merge and the proceedings set in motion, on the basis of the original return, will have to be taken forward. As the proceedings are initiated, in accordance with the law, and on the basis of the original return (filed by the appellant), no prejudice is caused to the appellant. 7.3 The decision in the case of Himgiri Foods Limited, cited by the appellant, is not applicable to the facts in the case of the appellant. In that case, issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is no dispute between the parties about the assessee having filed the original return on 4.7.2014 followed by Section 143(2) notice, revised return dt.16.11.2015 and the subsequent section 143(2) notice dt.18.11.2016; respectively, in seriatum. Mr. Pandey fails to dispute that the Assessing Officer notice u/s. 143(2) dt.18.11.2016 turns out to be beyond the statutory period of six months from the end of the financial year in view of the revised return dt.16.11.2015. This period of six months has to be counted from 31.03.2016 therefore. We go by this analogy and find that this latter section 143(2) notice dt.18.11.2016 is not a valid notice since issued beyond the said period of six months. Now coming to the next important question as to whether the Assessing Officer must issue afresh section 143(2) notice; going by the assessee or by the earlier notice issued before the assessee's revised return dt.16.11.2015 shall continue to hold the field, we find that the same is no more res integra as per learned co-ordinate bench s decision (supra) is no more res integra as per learned co-ordinate bench s decision (supra) as under : 3. It was fairly agreed by the Ld.AR that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43(2) only on 27.03.2015 which is also extracted by the AO in Page No.27 of this order. It was a further submission that the assessee having been granted substantial opportunities as has been extracted by the AO in Page No.6 of this Order, it was a submission that the assessment was liable to be upheld. 5. We have considered the rival submissions. Admittedly, the last revised return filed by the assessee on 26.02.2014. This was admittedly a valid revised return. The AO has also not rejected the revised return. The assessee has also given his Explanation for filing the said revised return. In fact, after the said revised return was filed, notice u/s.142(1) has been issued on 10.12.2014 and show cause notice have been issued on 23.12.2014 and on 12.03.2015. In response to the show cause notice issued by the AO on 23.03.2015, intimating the assessee to provide his response by 27.03.2015, the assessee has intimated that the notice u/s.143(2) has not been issued on the assessee within the prescribed time. In fact, before the show cause notice being issued by the AO, the assessee never had an opportunity to intimate the AO that notice u/s.143(2) had not been issued. A perusal of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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