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TMI Blog2025 (3) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and should be taken on record by the Ld. AO. In the instant case, AO in his order has stated that since the assessee did not furnish the return of income within the time limit specified in the notice u/s 148 no notice u/s. 143(2) of the Act was issued to the assessee. The failure of the AO to issue notice u/s. 143(2) of the Act, prior to finalizing the re-assessment order, cannot be curable by the provisions of section 292BB of the Act.
Thus notice u/s.143(2) of the Act presupposes the assessment order, we are of the considered view that the assessment order passed by the Ld. AO u/s. 147 r.w.s 144 r.w.s 144B in the case of the assessee is bad in the eyes of law and cannot be sustained. Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... ies furnished by the assessee except for the receipt of Rs. 26,40,000/- wherein the assessee claimed to have sold the property on 12/03/2015 and received the entire sale consideration in cash. Thereafter, the Ld.AO proceeded to tax Rs. 93,37,000/- [Rs. 1,19,77,000 - Rs. 26,40,000] as unexplained investment u/s. 69 of the Act. On appeal, before the Ld. CIT(A), the assessee reiterated the similar submissions made before the Ld. AO. However, the Ld. CIT(A), considering the replies, sought for the remand report from the Ld. AO under Rule 46A of the IT Rules, 1962 for admission of the additional evidence. The Ld. AO vide the letter dated 24/07/2024 furnished the remand report and requested the Ld.CIT(A) to dismiss the appeal of the assessee as the assessee failed to furnish the supporting evidence and to substantiate her claim with regard to cash deposited into the bank account. Further, the assessee also raised a legal issue before the Ld.CIT(A) that the statutory notice u/s. 143(2) of the Act was not issued to the assessee and hence the assessment proceedings are invalid. The Ld. CIT(A) after considering the submissions and the remand report of the Ld. AO, did not accept the objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JP/2019 (AY 2013-14), dated 28/10/2020 (Jaipur Tribunal) (4) Income Tax Officer vs. M/s. Shri Krishna Dutta Academy, ITA Nos. 565, 566 & 568/LKW/2011 (AYs 2004-05, 2005-06 and 2008-09), dated 28/05/2013 (Lucknow Tribunal. (5) Commissioner of Income Tax vs. Laxman Das Khandelwal (2019) 108 taxmann.com 183 (SC) 5. The Ld. AR vehemently argued that in the absence of issuance of notice u/s. 143(2) of the Act, the assessment proceedings are invalid ab initio. Further, the Ld. AR referring to the decision of the Mumbai Bench of the Tribunal in the case of Smt. Amita Ismil Rangari vs. ITO (supra) and brought our attention to para 8 of the said order of the Tribunal and mentioned that "though the statutory obligation cast upon the assessee to comply with the notice u/s. 148 and file the "return of income" in compliance thereto within the stipulated time of 30 days, however in case the same is filed by the assessee beyond the stipulated time period, then merely for the reason that the some delay is involved in filing of the said "return of income" would not render the same as invalid and non-est". The Ld. AR therefore pleaded that the since the order of the Ld.AO is bad in law the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed on the assessee till the date of furnishing of the same. We may herein observe that Clause (a) of Section 234A(3) clearly contemplates that a "return of income" filed after the expiry of the stipulated time period shall still continue to be a "return of income" filed by the assessee pursuant to the notice u/s 148. We find that our aforesaid view also stands fortified from the very fact that after the assessee had filed the "return of income" pursuant to the notice u/s 148 on 10.08.2010, the same was acted upon by the A.O and a Notice u/s 143(2) was issued to the assessee, followed by culmination of the same into an assessment u/s. 143(3) r.w.s 147 of the "Act". We are of the considered view that now when issuance of a notice u/s 143(2) presupposes the availability of a "return of income" of the assessee on record, therefore, now when in the present case the A.O acted upon the "return of income" filed by the assessee, and issued a notice u/s 143(2), which thereafter had culminated into an assessment u/s 147 r.w.s 143(3), therefore, it would not be permissible on the part of the revenue to turn around and claim that no valid "return of income" was filed by the assessee." 8. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 7/8/2021. The contention of the assessee is that the assessee has not has received the notice u/s. 148 of the Act and hence has not complied with the filing of the return of income as prescribed within the time limit of 30 days stipulated in the notice u/s. 148 of the Act. Since the assessee has filed the return of income after the receipt of notice u/s. 142(1) of the Act, the return of income has not been taken cognizance by the Ld.AO. It is also the case of the assessee that where the return of income has been filed u/s. 139 of the Act, or in response to notice u/s. 142(1) of the Act, where the Assessing Officer finds that there are certain matters which require explanation by the assessee, then the Ld. AO has to comply with the provisions of section 143(2) of the Act which reads as under: "(2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer or the prescribed income-tax authority, as the case may be, if, considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, shal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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