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TMI Blog2024 (12) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income, cannot be treated to be the correct procedure in the eyes of law as observed in case of Hotel Blue Moon [ 2010 (2) TMI 1 - SUPREME COURT] . Issuance of notice u/s. 143(2) of the act after filing of return of income cannot be said to be mere procedural irregularity and the same is not curable. The basic requirement under the act for issuance of notice u/s. 143(2) cannot be dispensed as held in Shree Jay Shivshakar Pvt. Ltd [ 2015 (10) TMI 1765 - DELHI HIGH COURT] Thus reassessment orders passed for the years under consideration deserves to be quashed as no notice u/s.143(2) was issued for both years under consideration to the assessee post response filed by the assessee to treat its original return in response to the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .AO and filed requisite details as called for. The assessee also sought for the reasons recorded to reopen the assessment years under consideration, that was provided, which reads as under: The assessee has filed return of income for the year under corisideration on 28.09.2009 declaring total income at Rs. 2,70,210/- The same has been processed u/s. 143(1) of the Act. 2. Search seizure action has been carried out by the DGIT (Inv.), Mumbai in the case of Shri Bhanwarlal Jain and his Group Concerns on 03.10.2013. During the course of search/survey action, it was revealed that these group concerns are were merely providing accommodation entries through various benami concerns operated and managed by Shri Bhanwarlal Jain and his Son. It was fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax-19, Mumbai is hereby sought to re-open the case of the assessee for A.Y. 2009-10 by issue of notice u/s. 148 of the Income tax Act 1961. It is submitted that the reasons recorded furnished to the assessee for A.Y. 2010-11 is identically worded. 2.3. The assessee filed its objections to the reopening for both the year on 12.07.2016 which is placed in the paper book (at page 24 to 27 for A.Y. 2009-10 and 25 to 28 for A.Y. 2010-11). The Ld.AO passed order on the application filed by assessee objecting reopening of the assessment vide letter dated 31.08.2016 placed at page 28-29 for A.Y. 2009-10 and 29-30 for A.Y. 2010-11 of the paper book. 2.4. The Ld.AO thereafter considering the submissions of the assessee completed the assessment by ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .06.2016, whereas the assessee filed the return of income in response to the notice issued u/s. 148 of the act on 06.06.2016. The assessee thus contended that notice u/s. 143(2) was not issued on the return of income filed by the assessee in response to the notice u/s. 148 of the act. 3.2.1. The Ld.CIT(A) dismissed the additional ground raised by the assessee by observing as under:- 7.2.3. Moreover, this is not the case wherein notice u/s 143 (2) has not been issued at all and further the appellant never brought up this issue before AO during assessment proceedings. In view of the above, the contention of the appellant on the additional grounds of appeal is not found tenable. In view of the fact that there is no material on record to warran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment initiated by the Ld.AO as 143(2) notice was issued on 03.06.2016, post issuance of notice u/s. 148 of the act. We have perused the submissions advanced by both sides in the light of records placed before us. 5. The wording of the section 143(2)(ii) as applicable to the present year under consideration requires the Ld.AO to be satisfied after examination of the return filed by the assessee that, prima facie the assessee understated the income or has computed excessive loss or has underpaid the tax in any manner. The Ld.AO thus has a discretion to issue a notice u/s. 143(2), if he considers it necessary or expedient to do so. 5.1. We also note that such exercise by the Ld.AO u/s. 143(2) of the act, is qualitatively different from the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order so passed. 5.3. Respectfully following above discussion and decision referred to, we are of the opinion that, the reassessment orders passed for the years under consideration deserves to be quashed in the present facts of the case as no notice u/s. 143(2) was issued for both years under consideration to the assessee post response filed by the assessee to treat its original return in response to the notice u/s. 148 of the act. Accordingly Ground No. 1 raised by assessee stands allowed for both the years under consideration. 6. We have allowed the legal issue raised by the assessee, as a consequences of which, the reassessment order passed for A.Y. 2009-10 and 2010-11 stands quashed. We therefore do not find any reason to discus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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