TaxTMI 
TaxTMI 
2024 (7) TMI 1331
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....ls filed by the assessee and came to the conclusion that there is some escapement of income and issued a notice u/s. 148 of the Act on 06.02.2019, directing the assessee to file her return of income. The assessee had not responded. Therefore, a reminder notice has been issued on 13.03.2019 and thereafter a show cause notice u/s. 144 r.w.s. 147 of the Act was issued on 03.05.2019. The assessee immediately filed her reply on 20.05.2019 and requested to treat the return filed u/s. 139(1) of the Act as the return filed in response to the notice issued u/s. 148 of the Act. The assessee also explained the other issues in her reply. The ld. AO had not accepted her request to treat the return filed u/s. 139(1) of the Act as return filed to the notice issued u/s. 148 by relying on the judgement of the Hon'ble Supreme Court in the case of GKN Driveshaft v. ITO [2022] 259 ITR 19 (SC). With respect to the other issues the ld. AO not accepted the submissions of the assessee and further added the interest income for the purpose of assessment. The ld. AO finally made the assessment u/s. 144 r/w sec 147 of the Act and disallowed the Capital Gain claim u/s 54B of the Act, interest credited to t....
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.... of the order in the computation of income and tax, the ld, AO had first took the original income returned on 28.06.2014 and, therefore, the AO had taken the return for his consideration and therefore he ought to have issued a notice u/s. 143(2) of the Act. The learned A.R. further submitted that non-issuance of notice u/s. 143(2) is fatal and it cannot be cured or condoned by referring to sec. 292BB of the Act. The learned A.R. made his submissions in respect of other grounds of appeal also and prayed to allow the appeal. 6. The learned D.R. submitted that the legal grounds now raised by the assessee is not maintainable and also relied on the judgements in the case of PCIT v. Broadway Shoe Co. [2018] 99 taxmann.com 83 (J&K) and ACIT v. Uday Bhagwan Industries [2013] 33 taxmann.com 226 (Agra-Trib.) and argued that the legal plea is not well founded and prayed to dismiss the appeal. 7. We have heard the rival contentions and perused the material on record. First we will take up the main contention of the learned A.R. that the entire assessment is bad in law since no notice u/s. 143(2) was issued by the AO before passing the assessment order, that too after the assessee had request....
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....n a date to be specified therein to produce, cause to be produced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim: Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003; (ii) notwithstanding anything contained in clause (i), if he 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, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce or cause to be produced, any evidence on which the assessee may rely in support of the return: 9. We have seen that the assessee had filed her ROI on 28.06.2014 and the AO had not passed any order or intimation under the provisions of the Act. While so, based on the survey conducted in the business premises of a company and the deliberations done subsequently, the AO thought it fit to issue a notice u/s 148 of the Act for disallowing the Capital Gains claim u/s 54B of the Act. From the above it is clear that the AO had considered the return fi....
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....Further the Supreme Court case law relied on by the AO in the case of GKN Driveshaft (supra) to reject the request of the assessee is also on different set of facts and circumstances and it can not be relied on for rejecting the request. 11. We have also perused the assessment order and found that while computing the income and tax at pg. 7 of the order, the ld. AO had taken into consideration the return of income filed by the assessee and thereafter made the computation to make the assessment u/s. 144 r/w 147 of the Act as if, no returns were filed by the assessee. Once the AO had taken into consideration the return of income filed by the assessee then for disallowing some claim as inadmissible, he has to necessarily issue a notice u/s. 143(2) of the Act. We find that the AO had not issued any notice u/s. 143(2) of the Act before considering the return of income filed by the assessee and, therefore, the same is not in accordance with the law and the non issuance of the notice u/s. 143(2) is a fatal one and it cannot also be cured u/s. 292B of the Act. In view of the above discussion we come to the conclusion that the legal issue raised by the assessee is well founded. 12. We als....