2019 (5) TMI 1199

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....llenging the levy of penalty under section 271(1)(c) of the I.T. Act, 1961 for same year. 2. We have heard the Learned Representatives of both the parties. 3. The facts of the case are that return of income was filed on 30.10.2002 declaring income of Rs. 1.70 crores. The assessee claimed deduction under section 80HHC and 80IB of the I.T. Act, 1961. The assessee filed revised return of income declaring total income of Rs. 1.58 crores. Subsequently, notice under section 148 was issued to assessee on 27.03.2009 after getting the approval of Competent Authority because assessee has claimed excessive deductions under section 80IB and 80HHC of the I.T. Act, 1961. The A.O. passed the assessment order under section 148/143(3) of the I.T....

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....reated as return filed in response to the notice under section 148 of the I.T. Act. Copy of which is filed at page-40 of the PB. He has submitted that since no notice under section 143(2) have been issued and served upon the assessee within the period of limitation, therefore, entire re-assessment order is illegal and bad in law. He has submitted that similar issue have been considered by ITAT, Delhi Bench in the case of M/s. Rajsi Infin Consultants Pvt. Ltd., vs. DCIT ITA.No.2785/Del./ 2018 Dated 25.03.2019, copy of which is filed in the paper book. 7. On the other hand, Ld. D.R. as per directions of the Tribunal produced the reassessment records and has admitted that assessee has filed letter dated 07.04.2009 in response to the notice ....

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....s. Shri Jai Shiv Shankar Traders Pvt. Ltd., (supra), the assessee similarly made a statement before assessing officer to the effect that original return filed should be treated as return filed pursuant to notice under section 148 of the Income Tax Act and issue have been decided in favour of the assessee because notice under section 143(2) of the Income Tax Act was not issued within the time. Similarly in the same Judgment the Judgment of the Honorable Delhi High Court in the case of CIT versus Madhya Bharat Energy Corporation Ltd., (supra), relied upon by the Learned Department of Representative has been considered and is distinguished by the Honorable Delhi High Court and have held that the said decision is not of any assistance to the Re....

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....ital Services Limited (supra), it was held that "notice under section 143(2) within limitation is mandatory. Otherwise, assessment would be nullity and void. No reassessment order could be passed without compliance with the mandatory requirement of notice being issued by the assessing officer to the assessee under section 143(2) of the Income Tax Act." The above decisions relied upon by the Learned Counsel for the Assessee squarely apply to the facts of the case. The decisions relied upon by the Departmental Representative in the case of CIT vs. Madhya Bharat Energy Corporation Ltd., (supra) is already distinguished by the Hon'ble Delhi High Court and that the Judgment of the Hon'ble Punjab and Haryana High Court in the ca....