TaxTMI 
TaxTMI 
2020 (1) TMI 47
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction of 70 residential flats in the ratio of 47.34% (33 flats) to land lords share and 52.66% (37 flats) to builders share. As per the agreement, the assessee has transferred his share of land admeasuring 2089.90 sq.yards to the builder. Since the assessee has not filed the return of income, the AO had issued the notice u/s 148 on 15.02.2017 which was served on the assessee on 16.02.2017. In response to the notice issued u/s 148, the assessee has uploaded the return of income on 03.04.2017 online admitting total income of Rs. 3,91,230/- in the e-filing website of Income Tax Department. Afterwards notice u/s 143(2) was issued to the assessee on 10.04.2017 and duly served on the assessee on 12.04.2017. The return filed by the assessee on 03.04.2017 was not accepted by the Income Tax Department, since, the assessee has failed to furnish signed ITR V to CPC Bangalore or everified the return filed. Subsequently, the assessee has filed another return of income on 27.06.2017 for the A.Y.2016-17 admitting total income of Rs. 34,45,890/- which was accepted by the department. The AO completed the assessment u/s 143(3) on total income of Rs. 3,93,00,159/-. In the assessment order, the AO ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....initiation of assessment proceedings in response to the return filed. Therefore, submitted that the AO has to issue fresh notice on valid return. In the absence of fresh notice subsequent to filing the valid return, the AO is not permitted to take up the assessment as provided u/s 143(2) of the Act. The issue of notice u/s 143(2) pre supposes the existence of valid return of income. In the instant case, the assessee has filed the return of income on 27.06.2017 and there was no notice issued u/s 143(2) subsequent to filing the return of income, hence, argued that the assessment was completed without a valid notice u/s 143(2) and the case of the assessee is squarely covered by the decision of Supreme Court in the case of Hotel Blue Moon (supra). Therefore, submitted that the Ld.CIT(A) has rightly held that the assessment is invalid and no interference is called for. 6. We have heard both the parties and perused the material placed on record. In the instant case, the AO had issued notice u/s 148 in response to which the assessee has filed the return of income on 03.04.2017. Subsequently, notice u/s 143(2) was issued on 10.04.2017. The return filed on 03.04.2017 was not accepted by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....AR throughout the assessment proceedings and in no occasion objected the issue of service of notice. However, the AO has not brought anything on record to disprove the claim of the appellant that notice u/s. 143(2) of the Act was not served subsequent to filing of return which was accepted by the Department. In the rejoinder; the appellant stated that mere cooperation of the appellant in the assessment proceedings and non-raising of issue of non-service of notice would not make the defect curable. It was contended that notice u/s. 143(2) of the Act was not issued within the time prescribed under Act against the return which was considered by the AO for completion of the assessment. Hence, argued that the assessment order is invalid. The appellant filed copies of the decisions of various Hon'ble Courts and Tribunal as under: 1. Mr. Salman Khan (ITA (L) No. 2362 of 2009) Bombay High Court 2. Mr. Salman Khan (ITA No 508 of 2010) Bombay High Court 3. Pankaj Dutta (ITA No. 2206/Kol/2016) ITAT, Kolkata 4. Kamla Devi Sharma (ITA No.1026/JP/2016) ITAT,Jaipur I have considered the decisions relied upon by the appellant as above. The appellant relied on above decisions for the pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Section 158 BC(b) specifically refers to some of the provisions of the Act which requires to be followed by the assessing officer while completing the - block assessments under Chapter XIV-B of the Act. This legislation is by incorporation. This Section - even speaks of subsections which are to be followed by the assessing officer. Had the intention of the legislature was to exclude the provisions of Chapter XIV of the Act, the - legislature would have or could have indicated that also. A reading of the provision would clearly indicate, in our opinion, if the assessing officer, if for any reason, repudiates the return filed by the assessee in response to notice under Section- 158 BC(a), the assessing officer must necessarily issue notice under Section 143(2) of the Act within the time prescribed in the proviso to Section 143(2) of the Act Where the legislature intended to exclude certain provisions from the ambit of Section 153 BC(b) it has done so specifically. Thus, when Section 158 BC(b) specifically refers to applicability of the proviso thereto cannot be excluded. We may also notice here itself that the clarification given by CBDT in its circular Na.717 dated 14 August, 1995, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d meaning of the expression 'so for as may be apply'. In our view, where the Assessing Officer in repudiation of the return filed under section 1588C(a) proceeds to make on enquiry, he has necessarily to follow the provisions of section 142, sub-sections (2) and (3) of section 143. 17. Section 158BH provides for application of the other provisions of the Act. It reads: "Save as otherwise provided in this Chapter, all the other provisions of this Act shall apply to assessment made under this Chapter". This is an enabling provision, which makes all the provisions of the Act, save as otherwise provided, applicable for proceedings for block assessment. The provisions which ore specifically included are those which are oval/able in Chapter XIV-B of the Act, which includes section 142 and sub-sections (2) and (3) of section 143. 18. On a consideration of the provisions of chapter Xl V-B of the Act, we are in agreement with the reasoning and the conclusion reached by the High Court" The Hon'ble ITAT, Kolkata in the case of Pankaj Dutta discussed so many aspects regarding issue of notice u/s. 143(2) of the Act in reassessment proceedings. The Hon'ble Tribunal consider....