TaxTMI 
TaxTMI 
2020 (10) TMI 1359
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..... AO has grossly erred in law in completing the assessment u/s 148/143(3) of the Act, without considering the return filed and issuance and service of notice u/s 143(2) within the specified period as mentioned in provision to sec. 143(2) (2) The ld. AO has issued notice u/s 148 on the basis of change of opinion which is not permitted in law. Therefore the same deserves to be quashed being bad in law. Additional Ground: 2. The proceedings initiated u/s 147/148 are bad in law and ab initio void, having been initiated without fulfilling the requirements of law and without any new tangible material. This additional grounds is for elaboration of ground no.-2taken before the ld. CIT(A), as mentioned above. The same may kindly be admitted ....
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.....w.s. 143(3)/147 allowing only the current year loss of Rs. 1,87,60,143/-, as originally assessed u/s143(3), which was allowed to be carry forward to the subsequent assessment years. 4. Against the aforesaid order and findings of the AO, the assessee carried the matter in appeal before the ld. CIT(A). The ld. CIT(A)returned the finding that no substantive grievance arise to the assessee from the order of the Assessing Officer as only finding of the Assessing Officer is that only loss pertaining to A.Y. 2013-2014 and not of any earlier years can be carry forward which is very position taken by the assessee in the return filed U/s 148 on 12.12.2018 and accordingly technical objections to issuance of notice u/s 148 were dismissed as infructuo....
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.... from the order of the AO as held by the ld. CIT(A) in para 6.2 of her order which reads as under:- "6.2 The above grounds arise various technical objections to the issue of notice U/s 148 pursuant to which the impugned order u/s 148 dt. 28.12.2018 has been passed. However on perusal of the facts of the case, noted in Para 4. above, it is evident that in response to notice u/s 148 dt. 14.06.2017, the assessee filed return of income on 12.12.2018 ; in this return filed on 12.12.2018, loss for the relevant year, AY2013-14, was shown at Rs. 1,88,72,993/-, further in Schedule "CFL" of the return of income, i.e "Details of Losses to be carried forward to future years" (copy enclosed as Annex to this order). the assessee only claimed carry forw....
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....nded that no prejudice has been caused to the assessee by non-issuance of notice u/s 143(2) as in the impugned order u/s 148, the only finding of the A.O is that only losses for A.Y 2013-14, and not of any earlier years, can be carried forward, which is the very position taken by the assessee in the return so claimed to be filed u/s 148 on12.12.2018. However, as per the ld AR, in response to notice U/s 148 of the Act, the assessee filed its return of income on 12.12.2018 however, the AO did not issue any notice U/s 143(2) and proceeded to complete reassessment U/s 144 r.w.s. 147/143(3) on 28.12.2018 and in absence of notice u/s 143(2), the reassessment order so passed cannot be sustained and is bad in law and deserve to be quashed. 8. Ther....
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....e 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, shall serve on the assessee a notice requiring him, on a date to be specified therein, either to attend the office of the Assessing Officer or to produce, or cause to be produced before the Assessing Officer any evidence on which the assessee may rely in support of the return." 9. As per the aforesaid provisions, the legal necessity to issue notice u/s 143(2) arises where the Assessing Officer considers it necessary or expedient to ensure that the assessee has not understated the incom....
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....he Act. 10. In case of Kamla Devi Sharma (supra), relied upon by the ld AR, the facts of the case were that in compliance to notice u/s 148, the assessee had filed a return of income declaring income of Rs 139,300/-and thereafter, the Assessing officer completed the assessment u/s 147r/w 143(3) making the addition of Rs 1,01,20,000/- by treating the investment in purchase of land as unexplained. In that case, we therefore, find that the Assessing officer had made the addition to the returned income and therefore, it was necessary that before making such an addition, he should have issued a notice u/s 143(2) and having failed to issue such a notice, the Coordinate Bench had quashed the reassessment proceedings and which was later affirmed b....