TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 1642
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....the case are that the assessee is an individual and filed her return for the assessment year 2012-13 on 30/03/2014 declaring an income of Rs. 13,72,980/- and the same was processed under section 143(1) of the Act. Subsequently, basing on certain information, the case was sought to be reopened under section 147 of the Act by issuing a notice under section 148 of the Act. Learned Assessing Officer recorded that in spite of issuance of notice on 28/03/2019 which was served on the assessee, the assessee did not respond to the same. Another notice dated 12/04/2019 calling for details was issued and it was served on the assessee on 13/06/2019. But still the assessee did not respond. Date of hearing was fixed on 06/11/2019 and such notice was serv....
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....ponse to notice under section 142(1) of the Act, calling for a return. On this premise, learned CIT(A) held that non-issuance of a separate notice under section 143(2) of the Act in this case does not vitiate the proceedings under section148 of the Act. 5. Learned AR submitted that issuance of notice under section 143(2) of the Act is necessary when the assessee filed response to the notice issued under section 148 of the Act, stating that the original return may be treated as a return filed in response to the notice under section 148 of the Act. He further submitted that the learned Assessing Officer himself recorded that such a response was filed by the assessee vide letter received on 12/12/2019. He drew our attention to paragraph No. 3....
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.... the Act and the Act does not contemplate the notice under section 143(2) of the Act in such situation. She further submitted that the assessee did not file any return of income or any request to treat the original return of income as the return filed in response to the notice under section 148 of the Act, but it was only at a later point of time, namely, on 11/12/2019, assessee filed online the return of income and submitted a letter on 12/12/2019 to treat the return of income filed on the earlier day as the return of income submitted pursuant to the notice under section 148 of the Act. She further submitted that having not responded to the notices to file the return of income and to participate in the hearing before 05/12/2019, the assess....
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....g Officer after 29/11/2019. 9. Subsequent to this 29/11/2019 during the course of hearing when certain issues were put before the assessee, then the assessee claimed to have uploaded the return of income on 11/12/2019, and by letter dated 12/12/2019 the assessee requested to treat such return of income that was filed online on 11/12/2019 as the return submitted in response to notice under section 148 of the Act. Further from paragraph No. 3.3 it could be noticed that to the letters dated 05/12/2019 and 12/12/2019 the assessee made certain submissions touching the merits of the case, apart from mentioning in the letter dated 12/12/2019 about the fact of the assessee filing online the return of income on 11/12/2019 and to treat it as the ret....
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....k the return. In the case of Oberoi Hotels (P.) Ltd (supra) the Hon'ble Calcutta High Court held that the dictum of the Hon'ble Supreme Court in the case of Hotel Blue Moon(supra) is that a notice under section 143(2) of the Act is mandatory if the return as filed, is not accepted and an assessment order is to be made at variance with the return filed by the assessee. It, therefore, goes without saying that non-issuance of notice under section 143(2) of the Act vitiates the proceedings if the assessee filed the return of income, such a return as filed was not acceptable to the learned Assessing Officer and the assessment has to be made at variance with the return filed by the assessee. If no return of income is filed by the assessee....