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TMI Blog2023 (6) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... or want of any satisfaction that could be legally recorded. The reopening made by learned AO deserves to be quashed on this count also. As the return filed by the assessee on 06.10.2015 is a return filed belatedly u/s 139(4) of the Act. Nothing prevented the learned Assessing Officer to select this return for scrutiny and frame the assessment in accordance with law. When this provision is available with the learned Assessing Officer, where is the need for him to issue reopening notice that too before the end of the assessment year itself. Hence the reopening notice issued u/s 148 of the Act in the instant case is to be declared premature. Revenue cannot resort to reopening proceedings merely because a particular return is not selected for scrutiny. Reopening of an assessment cannot be resorted to as an alternative for not selecting a case for scrutiny. There should be conscious formation of belief based on tangible information that income of an assessee had escaped assessment. No hesitation to quash the reassessment proceedings framed by learned AO as void ab-initio - Decided in favour of assessee. - Shri Saktijit Dey, Vice President And Shri M. Balaganesh, Accountant Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to add, later, delete, modify or substitute any of the grounds urged above. 3. We deem it fit to address the ground no. 4 first as it challenges the validity of assumption of jurisdiction by learned Assessing Officer in the reassessment proceedings. 4. We have heard rival submissions and perused the materials on record. We find that the assessee has filed its return of income for the assessment year 2014-15 belatedly under section 139(4) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) on 06.10.2015 declaring total income of Rs. Nil, after claiming exemption for the profit of Rs. 5,11,44,966/- under section 10(26BBB) of the Act. This return was not selected for scrutiny by learned Assessing Officer. But we find very strangely, the learned Assessing Officer issued a notice under section 148 of the Act on 22.01.2015 itself, which is prior to the date of filing of return of income by the assessee. We find that the assessee has got time to file the return belatedly in terms of section 139(4) of the Act till 31.03.2016. While this is so, there is absolutely no need for learned AO to issue reopening notice under section 148 of the Act. The learned Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y learned AO on merits. In this regard, it is pertinent to note that against the order of learned CIT(A) for assessment year 2009-10, the assessee preferred an appeal before this Tribunal and this Tribunal vide its order passed in ITA No. 3070/Del/2016 dated 31.05.2021 had quashed the reassessment proceedings. Since, for assessment year 2014-15, i.e., the year under consideration, the learned CIT(A) had merely relied on the order of the predecessor for assessment year 2009-10, which stood subsequently quashed by this Tribunal, the assessee deserves to get relief on merits also for the year under consideration. 7. As stated earlier, the return filed by the assessee on 06.10.2015 is a return filed belatedly u/s 139(4) of the Act. Nothing prevented the learned Assessing Officer to select this return for scrutiny and frame the assessment in accordance with law. When this provision is available with the learned Assessing Officer, where is the need for him to issue reopening notice that too before the end of the assessment year itself. Hence the reopening notice issued u/s 148 of the Act in the instant case is to be declared premature. In any case, the revenue cannot resort to reopeni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the judgments of the Supreme Court as well as the Delhi High Court, cited supra, the Tribunal is right in coming to a conclusion that no action could be initiated under section 147 of the Act, when there is a pendency of the return before the Assessing Officer. The reasons given by the Tribunal are based on valid materials and evidence and we do not find any error or illegality in the order of the Tribunal so as to warrant interference. 18. Same is also the mandate of Honourable Delhi High court in [2007] 292 ITR 49 KLM ROYAL DUTCH AIRLINES v. ASSISTANT DIRECTOR OF INCOME-TAX where in it has been held that Where an assessment has not been framed at all, it is not possible to posit that income has escaped assessment. 8. Similar view was also addressed by the Coordinate Bench of Bombay Tribunal in the case of Bakimchandra Laxmikant Vs. Income-tax Officer, reported in [1986] 19 ITD 527 (Bombay), wherein it was held as under: 9. Question now remains what is the effect of the notice under section 148. Does the return filed after issue of notice under section 148 cease to be a return under section 139 or any loss determine in pursuance of such a return could be den ..... X X X X Extracts X X X X X X X X Extracts X X X X
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