TaxTMI 
TaxTMI 
2025 (5) TMI 1869
X X X X Extracts X X X X
X X X X Extracts X X X X
.... CIT(A) has wrongly set aside the addition of cash deposit amounting to Rs. 33,95,000/- on account of unexplained money in the bank account u/s 69A of the I.T. Act, 1961. The assessee craves leave to add, amend, alter, or withdraw any aforesaid grounds of appeal." 3. Succinctly, the factual panorama of the case is that assessee before us is an Individual. In the assessee`s case, the assessment proceedings were initiated for the reason that assessee has deposited cash in the bank account during the demonetization period starting from 09.11.2016 to 30.12.2016. The notice under section 142(1) of the Act, was first issued by the assessing officer, on 19.12.2017, seeking the assessee to file the return of income for assessment year (AY) 2017-18. The assessing officer issued further notices under section 142(1) of the Act, on 10.04.2019 and 24.05.2019. The said notices were issued & served electronically on the assessee. 4. In response to above notices, u/s 142(1) of the Act, the assessee has filed the reply before the assessing officer electronically. In response to above notices, the assessee has also filed return of income for assessment year ( A.Y.) 2017-18, on 03.06.2019, before....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ration. Therefore, the order passed by the assessing officer u/s 144(1)(b) of the Act dated 30.07.2019 is hereby set aside for making fresh assessment, de-novo, after taking into account the above submissions filed by the assessee. Needless to say that the assessing officer should, while conducting the set aside proceedings, shall give proper opportunities of representation of its case to the assessee and take into account any further submissions which it has to file during the curse of the said proceedings. The assessee should duly comply with the correspondences issued by the assessing officer. 5.4 The appeal filed by the assessee is thus disposed-off and assessment is set aside to the file of the A.O." 10. In para no.4, vide page number 3 of the order of the ld. CIT(A), the ld. CIT(A) mentioned that assessee has submitted written submission before him, and these written submissions have been considered by the ld. CIT(A). The ld. CIT(A) after taking into account, the written submission of the assessee and the documents filed before him, stated that assessing officer has correctly framed the assessment order u/s 144 of the Act. Not only that the order passed by the assessing of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on to make assessment, the notice u/s 143(2) of the Act, is mandatorily to be issued by the assessing officer. The Ld. Counsel for the assessee submitted that once the assessee filed his return of income, in response to notice u/s 142(1) of the Act, then it was the duty of the Assessing Officer to issue the notice u/s 143(2) of the Act, to obtain the jurisdiction to make the assessment on the assessee. Since the assessment was framed without issuing notice u/s 143(2) of the Act, therefore, the assessment order is itself invalid and hence the assessment order should be quashed. 14. On the other hand, Ld. Senior DR for the Revenue supported the order of lower authorities. The Ld. Sr-DR submitted that assessment has been framed u/s 144 of the Act, as an ex parte order, because the assessee has failed to file the return of income during the assessment proceedings before the assessing officer, on time, within the time mentioned in the notice u/s 142(1) of the Act. Besides, during the assessment proceedings, the assessee has not submitted the entire details and documents, therefore assessment order was framed by the assessing officer u/s 144 of the Act and ld. CIT(A) was also right to s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fficers may allow time, to file return of income, in notice u/s 142(1) of the Act, for two Months/three Months, therefore it is only administrative and individual decision of the assessing officer, to allow the time limit to the assessee, to file the return of income, in response to the notice u/s 142(1) of the Act. However, once the assessee has filed the Return of Income, in response to notice, u/s 142(1) of the Act, (although it is late, as compare to the date mentioned in the notice u/s 142(1) of the Act), then it would be mandatory for the assessing officer, in order to acquire the jurisdiction, to make the assessment on the assessee, to issue the notice u/s 143(2) of the Act. Without issue of notice u/s 143(2) of the Act, the assessing officer does not get jurisdiction to make the assessment on the assessee. 17. We also noticed that assessing officer framed the assessment order u/s 144 of the Act, wrongly, without considering the fact that assessee has submitted during the assessment proceedings, all the details and documents required by the assessing officer. As we have noted earlier, that during the assessment proceedings, in response to notice u/s 142(1) of the Act, the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ere on record) rather than to remit the issue back to the file of the assessing officer for fresh assessment. 19. We find that notice u/s 142(1) of the Act has been issued by the assessing officer, requiring assessee to file return of income. The assessee has duly filed return of income in response to the said notice issued u/s 142(1) of the Act, declaring total income at Rs. 5,64,690/-. The assessment has been completed by passing an order u/s 144(1)(b) of the Act. The assessing officer has duly acknowledged the return of income filed by the assessee. The assessing officer, while passing assessment order has duly considered the return of income, filed by the assessee, in response to the notice issued u/s 142(1) of the Act, dated 03.06.2019 and addition was made after due consideration of income reflected in the return of income. The relevant extract of para No.6 of the assessment order, reflecting assessed income, is as follows: "6. Considering the details available on record and after due verification, the income is assessed as under: Income as per return of income (filed on 3/6/2019 Rs. 5,64,690/- Add: Addition as per para-5 above Rs.33,95,000/- Assessed income Rs.39....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cer. Nowhere, in the assessment order or show cause notice, or proceedings, the assessing officer has stated that return filed by the assessee is invalid or non-est. The assessing officer has not discarded such return but still initiated the proceedings on the basis of return filed by the assessee. Since, the return filed by assessee is belated return and the same is not discarded, as invalid, by the assessing officer, in such a case, if assessing officer wants to frame assessment at higher income, on the assessee, then in that circumstances, the assessing officer is bound to issue a notice u/s 143(2) of the Act and a reasonable opportunity of hearing should be given to the assessee, for that we rely on the judgement of the jurisdictional Gujarat High Court in the case of Devendranath G Chaturvedi,[2017] 83 taxmann.com 141 ( Guj-HC), wherein it was held as follows: "IT: Where return for block period fled by assessee belatedly was not discarded as invalid, in such a case, if Assessing Officer wanted to frame assessment at higher income, he was bound to issue a notice under section 143(2) Section 143, read with section 158BC, of the Income-tax, Act, 1961 - Assessment (issue of no....