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TMI Blog2024 (5) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dt. 27.12.2023 invoking proceedings under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short, the Act ). 2. The grounds raised by the assessee read as under : 1. That the order of the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi in confirming the addition of Rs. 50,00,000/- towards unexplained investment u/s 69B of Income Tax Act, 1961 is wholly unsustainable in law and on facts. 2. That the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi erred in holding that notice u/s 143(2) read with section 254 of the Act was issued in the appellant case merely relying on the impugned assessment order passed by the Learned Assessing Officer without calling for the case records. In doing so he failed to appreciate the fact that the statement of the assessing officer in paragraph 2 of the impugned assessment order is a copy paste mistake as issuing notice u/s 143(2) read with section 254 of the Act is totally unwarranted in the appellant case. Hence the order passed by the learned assessing officer is without assuming proper jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee on 28.03.2019. Thereafter, a show cause notice and also notice u/s. 142(1) were issued along with questionnaires. 3.1. During the course of assessment, assessee submitted his reply wherein he stated that the sources of Rs. 50 lakhs were from accumulations of his income and savings from the past several years and amount received from family members and further submitted that he had advanced money to the said Lakshmana Prasad with an intention to receive interest. Further, as the said Lakshmana Prasad died, he had filed suit to recover the advanced amount from the claimants of the estate of the deceased Alluri Lakshmana Prasad. Except the above information, the assessee failed to prove the sources of money with evidence and creditworthiness of lenders inspite of being called for time and again. Hence, the Assessing Officer treated the said amount as unexplained investment u/s 69B of the Act and thereafter completed the assessment and passed assessment order u/s. 143(3) r.w.s. 147 of the IT Act, 1961 determining the total income at Rs. 52,04,480/-. 4. Feeling aggrieved with the order of Assessing Officer, assessee filed an appeal before the ld.CIT(A), who dismissed the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of issue of notice DIN? The Notice u/s 143(2) was issued manually on 24.06.2019. However the proof of service of the notice is not readily available with this office. As verified in ITBA, No notice u/s 143(2) was issued electronically. (ii) Whether the assessee filed any return of income in response to notice u/s 148 issued in this case. If so, what is the date of filing of such return? The assessee has not filed any Return of Income for the A.Y 2012-13 in response to notice u/s 148. On perusal of records from ITBA, the assessee has filed Return of income for the AN 2012-13 on 02.02.2013 u/s 139(4). However, the assessee replied vide letter dated 21.06.2019 stating that the Return of income was filed on 02.02.2013 declaring the' income from all the sources and requested to accept the Return of income filed. (iii) If no return in response to 148 is filed, the question of issuance of notice u/s 143(2) does not arise. In such a scenario the assessment was to be completed u/s 144 rws 147 However, the impugned order is seemed to have been passed u/s 143(3), rws 147 of the Act. Please, clarify. The assessee has not filed Return of income u/s 148. So notice u/s 143(2) does not ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(2) should be issued and served upon the appellant. But in the present appellant case the Learned Assessing Officer has not issued and served the notice u/s 143(2) before completion of assessment proceedings for the AY 2012-13. The said non issuance of notice u/s 143(2) is a grave error and the assessment order passed u/s 143(3) r.w.s 147 of the I.T. Act dt. 24-12-2019 is without assuming the jurisdiction as conferred by section 143(2) and hence the said Assessment order passed is bad-in-law and is liable to be quashed. In this regard the appellant is placing reliance on the following case laws; (i) The decision of the Hon'ble Apex Court in the case of ACIT v. Hotel Blue Moon, (2010) 321 ITR 362 (SC) wherein it was held by the Hon'ble Court that issuance of notice under section 143(2) is mandatory even in block assessments. (ii) CIT v. Salarpur Cold Storage, (2019) 50 taxmann.com 105 (All-HC). For framing order under section 143(3) it is necessary to issue a notice under section 143(2) of the Act, and in absence of notice under section 143(2) the assumption of jurisdiction itself would be invalid. (iii) Pr. CIT v. Jignesh Bhagwandas Patel (Guj-HC) ITA No.282,283 of 2019. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, in the assessment order, it was mentioned that the assessee has filed the return of income along with the letter dt. 21.06.2019 for the consideration of the Assessing Officer. However, quite contrary to the above said decision, the ld.CIT(A) has not decided the grounds as mentioned hereinabove, while passing the order and has passed order in a cryptic manner mentioning that the submissions made by the assessee are misleading and false and we do not subscribe the finding recorded by the ld.CIT(A) as there was no basis for recording that the submissions of the assessee were misleading and false. Quite contrary to the findings of the ld.CIT(A), when we called report from the Assessing Officer, the Assessing Officer categorically mentioned that the notice was issued manually on 24.06.2019, however, the proof of service of the notice was not available in the office. Thereafter, it was mentioned that on verification of ITBA Portal, no notice u/s 143(2) of the Act was issued electronically. As mentioned hereinabove, as per the Instruction No.1 of 2018 issued by the CBDT, the notice u/s 143(2) of the Act is required to be issued electronically and there is no provision of issuing no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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