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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 ..... Nayak but did not file her return of income nor disclosed the transactions. Therefore, on the basis of these facts, the case was reopened by the jurisdictional Assessing Officer of the assessee u/s. 147 of the Act and issued notice u/s. 148 of the Act on the assessee on 29/03/2021 wherein the assessee was requested to furnish the return of income for the AY2015-16 within 30 days from receipt of the said notice. But, it was found that the assessee has filed the return of income belatedly on 23/09/2021 and hence, the same was not taken on record and considered as non-est in view to the fact that the assessee has not furnished the return of income within the prescribed time limit in the said notice. Thereafter, notice u/s. 142(1) of the Act was issued on various dates. In one of her reply dated 23/09/2021, the assessee stated that she and her husband are working as Teachers in Government School and explained the source of cash deposited in her bank account as detailed in para 4(i) of the assessment order. Further, in another letter dated 17/12/2021, the assessee was requested to establish the amount of Rs. 47,17,000/- claimed to have arisen out of their accumulated savings which was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly. 3. The Ld. CIT(A) is not justified in treating the assessment as valid even though such assessment was made without proper service of notice u/s. 148 of the Act and hence leads to be void ab initio and liable to be quashed. 4. The Ld. CIT(A) ought to have appreciated that in the absence of issue of notice u/s. 143(2) of the Act the assessment made is to be treated as invalid ab initio. 5. The Ld. CIT(A) is not justified in confirming the total addition made u/s. 93,37,000/- under section 69 of the Act. 6. Any other legal and factual ground that may be urged at the time of hearing of the appeal." 3. Grounds No. 1 and 6 are general in nature and need no adjudication. 4. Grounds No. 2, 3 & 4 relate to the issuance of notice u/s. 143(2) of the Act wherein the assessment was completed without proper service of notice u/s. 148 of the Act. On this issue, the Ld. AR argued that the assessee was issued a notice u/s. 148 of the Act on 29/03/2021 and in response to the notice u/s. 148 of the Act, the return was filed on 23/09/2021. The Ld. AR further submitted that since the return of income was filed beyond the date prescribed in the notice u/s. 148 of the Act, the Ld. AO tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond the stipulated time of 30 days in response to the notice u/s. 148 of the Act. In the case of Smt. Amita Ismil Rangari vs. ITO (supra) relied on by the Ld. AR, the coordinate Bench of the Tribunal at Mumbai vide para 8 of its order has held as follows: "8. We shall first advert to the observation of the A.O that as the "return of income" filed by the assessee pursuant to notice issued u/s 148 was filed beyond the specified time period of 30 days from the date of service of notice, therefore, the same would be rendered as invalid, and resultantly the claim of exemption raised by the assessee u/s 54F in the said non est "return of income" could not be allowed. We are unable to persuade ourselves to accept the aforesaid observation of the lower authorities. We are of the considered view that though a statutory obligation is cast upon the assessee to comply with the notice issued u/s 148 and file the "return of income" in compliance thereto within the stipulated time period of 30 days, however, in case the same is filed by the assessee beyond the stipulated time period, then merely for the reason that some delay is involved in filing of the said "return of income" would not render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so filed by the assessee on 12.12.2018 stating that such a return of income has been filed beyond the stipulated time frame of thirty days as specified in the notice u/s 148 for filing such return of income. In our view, such a return of income even though filed belatedly would still qualify as return furnished under section 139 of the Act and should therefore be taken cognizance of by the Assessing officer. Even where it is held that no return of income has been filed in response to notice u/s 148, the return of income so filed on 12.12.2018 shall be taken as return filed in response to notice u/s 142(1) dated 11.12.2018 and therefore, in either case, the return of income has to be taken cognizance of by the Assessing officer. Where the return of income has been filed u/s 139 or in response to notice u/s 142(1), where the Assessing officer finds that there are certain matters which require explanation by the assessee, then in such cases, he 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 prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legal necessity of issuance of notice u/s. 143(2) of the Act to complete the assessment. It is an accepted legal proposition that where the return of income has been filed in response to notice u/s. 148 of the Act, the provisions of the Act shall apply as if such return was a return required to be furnished u/s. 139 of the Act. In the instant case, the Ld. AO did not consider the return of income filed by the assessee on 23/09/2021 stating that the return filed by the assessee is beyond the stipulated time frame of 30 days as specified in the notice u/s. 148 of the Act for filing the return of income. In our opinion, the return of income even though filed belatedly would still qualify as return furnished u/s. 139 of the Act and should be taken on record by the Ld. AO. In the instant case, the Ld. 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 of the Act, no notice u/s. 143(2) of the Act was issued to the assessee. The failure of the Ld. 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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