TaxTMI 
TaxTMI 
2019 (3) TMI 436
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.... circumstances of the case. 3) That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in upholding the action of the Ld. A.O. in framing the impugned reassessment in u/s 143(3)/147 of the Act, and that too without issuing / serving the mandatory notice u/s 143(2) within the statutory allowable period and more so by not fulfilling the requirements of the provisions of law. 4) That in any view of the matter and in any case, action of Ld.CIT(A) in confirming the action of Ld. A.O. in restricting the addition to the extent of Rs. 17,77,886/- being 12.5% of the purchases i.e. Rs. 1,42,23,093/- claimed to have been made, allegedly on account of bogus purchases from M/s Maa Durga Trading Company and that too without proper appreciation of facts on record, and by recording incorrect facts and findings, and making allegations without any basis, material or evidence and merely on the basis of surmises and conjectures and without observing the principal of natural justice. 5) That in any case and in any view of the matter, action of Ld. CIT(A) in confirming the addition of Rs. 17,77,886/- is bad in law and against the facts and circumstan....
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....r 26.8.2015 which was received by the assessee and in response to the same the AR of the assessee appeared on 12.8.2015 and filed power of attorney, copy of ITR alongwith computation and requested to treat the original return filed in response to the notice u/s. 148 of the Act. He draw my attention towards page no. 14 which is the copy of the notice u/s. 148 of the Act dated 26.3.2015 and also the page no. 16 which the copy of the notice u/s. 143(2) of the Act dated 12.8.2015 and also page no. 17 which the copy of the reply filed by the AR of the assessee dated 07.9.2015 in which the assessee has filed some documentary evidence which the copy of income tax return alongwith computation of income for AY 2008-09, copy of Audit Report for the FY 2007-08 and copy of Auditable Balance Sheet alongwith complete annexure, trading and profit and loss account with complete annexure. Finally he stated that AR of the assessee appeared on 12.8.2015 and stated that original return filed by the assessee may be treated the return of income filed in response to the notice u/s. 148 of the Act, but on the same date the AO given the notices to the assessee i.e. 12.8.2015 u/s. 143(2) of the Act which is....
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.... copy of the notice u/s. 148 of the Act dated 26.3.2015; page no. 16 which the copy of the notice u/s. 143(2) of the Act dated 12.8.2015 and also page no. 17 which is the copy of the reply filed by the AR of the assessee dated 07.9.2015 in which the assessee has filed some documentary evidence which the copy of income tax return alongwith computation of income for AY 2008-09, copy of Audit Report for the FY 2007-08 and copy of Auditable Balance Sheet alongwith complete annexure, trading and profit and loss account with complete annexure, I find considerable cogency in the submission of the assessee's counsel that assessee appeared on 12.8.2015 and stated that original return filed by the assessee may be treated the return of income filed in response to the notice u/s. 148 of the Act, but on the same date the AO given the notices to the assessee i.e. 12.8.2015 u/s. 143(2) of the Act which is at page no. 16 of the Paper Book, which shows non-application of mind on the part of the of the AO. Therefore, notice under section 143(2) is invalid and resultantly, the assessment is vitiated and is liable to be quashed. I accordingly, set aside the orders of the authorities below and quash th....
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....return was filed on 27th March, 2000 is invalid." 5.2 The ITAT, Delhi in the case of Shri Harsh Bhatia, New Delhi vs. ITO, Ward-50(3), New Delhi in ITA.No.1262 and 1263/Del./2017 dated 17.10.2017 has held as under : 10. "It was further argued by the ld. counsel for the assessee Dr. Rakesh Gupta that notice u/s 143(2) of the Act, was issued on 17.09.2014 and which is the same date on which return was filed. This is apparent from the Assessing Officer's order in para 3 at page 1. Therefore, the Assessing Officer has not applied his mind independently while issuing notice u/s 148 of the Act. On this count also, the assessment deserves to be quashed. Accordingly, under the facts and circumstances of the case, the legal grounds of the assessee are allowed." 5.3 The ITAT, Delhi Bench in the case of Micron Enterprises Pvt. Ltd. vs. ITO ITA No. 801/Del/2016 (AY 2006-07) vide order dated 14.5.2018 has held as under:- "5. Learned Counsel for the Assessee submitted that assessee filed reply to the notice under section 148 of the I.T. Act on dated 26.11.2013 which is noted in the assessment order, copy of which, is filed at page-11 of the paper book, in which, assessee explained that the....
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....er : "Assessment made in pursuance of a notice under section 143(2) issued on 23rd March, 2000 when the return was filed on 27th March, 2000 is invalid." 6. He has submitted that the same order have been followed by ITAT, Delhi Bench, in the case of Shri Harsh Bhatia, New Delhi vs. ITO, Ward-50(3), New Delhi in ITA.No.1262 and 1263/Del./2017 dated 17.10.2017 in which the Tribunal held as under : 10. "It was further argued by the ld. counsel for the assessee Dr. Rakesh Gupta that notice u/s 143(2) of the Act, was issued on 17.09.2014 and which is the same date on which return was filed. This is apparent from the Assessing Officer's order in para 3 at page 1. Therefore, the Assessing Officer has not applied his mind independently while issuing notice u/s 148 of the Act. On this count also, the assessment deserves to be quashed. Accordingly, under the facts and circumstances of the case, the legal grounds of the assessee are allowed." 7. On the other hand, Ld. D.R. submitted that assessee did not file return under section 148 within the specified period. Therefore, this ground of appeal of assessee may be dismissed. 8. After considering the rival submissions, I am of the view ....