TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 1098
X X X X Extracts X X X X
X X X X Extracts X X X X
....Without prejudice to the above, the Ld.CIT(A) ought to have held that the income of the appellant is eligible for exemption U/s. 11 of the Act. 4. Without prejudice to the Ground No.2 and Ground No.3, the AO is not justified in computing the total income of appellant at Rs. 59,85,734/-. 5. Any other ground that may be urged at the time of appeal hearing." 3. Apart from that, the assessee society has raised an additional ground of appeal, which, reads as under: 1. "The assessment order passed without issue of notice U/s. 143(2) of the Act is invalid." 4. Succinctly stated, the A.O. issued notice u/s 142(1) of the Act, dated 01/12/2017, wherein the assessee society was called upon to file its return of income for the subject year, i.e., A.Y 2017-18. In response, the assessee society had filed its return of income for AY 2017-18 on 31/03/2019, declaring NIL income after claiming exemption U/s. 10(23BB) of the Act. Subsequently, the case of the assessee society was selected for "Complete scrutiny" under CASS and a notice U/s. 143(2) of the Act, dated 22/09/2019 was issued by the A.O. 5. During the course of the assessment proceedings, the AO, based o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Per Contra, the Ld. DR, submitted that as the assessee society had failed to file its return of income in compliance to the notice issued by the A.O. u/s 142(1) of the Act, dated 01.12.2017 within the prescribed period provided in the said notice, therefore, the return of income that it had filed on 31.03.2019 was beyond the prescribed time limit and, thus, was not a valid return of income. The Ld. DR, submitted that as the assessee society had failed to file its return of income in compliance to the notice issued u/s 142(1) of the Act, dated 01.12.2017 within the prescribed period, therefore, the A.O. by not taking cognizance of the said return of income had rightly withdrawn the notice u/s 143(2) of the Act, dated 22.09.2019 that was earlier issued by him. The Ld. D.R., on being queried by the Bench that, now when it was a matter of fact borne from the record that the assessee society had filed its return of income in response to the notice issued u/s 142(1) of the Act, dated 01.12.2017 on 31.03.2019 i.e., during the pendency of the assessment proceedings, then how the issuance of notice under Section 143(2) of the Act was done away with, submitted that as the impugned return of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ee society had delayed the filing of its "return of income" in compliance to the notice u/s. 142(1) of the Act, dated 01.12.2017, and had filed the same belatedly on 31.03.2019, i.e. after the lapse of the time period allowed in the aforesaid notice, the same could by no means form a basis for treating the said "return of income" as invalid. Our aforesaid conviction is fortified by the fact that in case of a delay involved in filing the "return of income" in compliance to the notice under Section 142(1) of the Act, i.e., furnishing of the same after the lapse of the time period allowed in the notice, the assessee is visited with the levy of interest for the delayed period u/s. 234A of the Act. On a bare perusal of Section 234A(1) of the Act, it transpires that though the said statutory provision contemplates that the delay involved in the filing of a "return of income" in response to the notice under Section 142(1), i.e., furnished after the lapse of the time period allowed in the notice is to be subjected to levy of interest, but the same nowhere provides that the "return of income" so filed is to be held as invalid. Our aforesaid view is fortified by an analogy that can safely be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inated vide order passed by the A.O under Section 144 of the Act, dated 28.12.2019, therefore, we are of a firm conviction that there was no justification for the A.O. to have held the said "return of income" as invalid and non-est in the eyes of law. Also, support is drawn from the judgment of the Hon'ble High Court of Patna in the case of CIT Vs. Nagendra Prasad, (2023) 156 Taxmann.com 191 (Patna). The Hon'ble High Court, had observed that where the notice was issued by the A.O. u/s 148 requiring the assessee to file his return of income within thirty days but the said return was filed after eight and a half months, since the return was filed by assessee in response to the said notice, though delayed, there should have been a notice issued under Section 143(2) as the requirement to issue notice could not be dispensed with. Also, we find that the issue involved in the present appeal, i.e., as to whether or not the A.O. could have dispensed with the statutory obligation cast upon him to issue notice u/s 143(2) of the Act, for the reason that the assessee society had delayed the filing of the return of income in compliance to the notice issued u/s 142(1) of the Act is square....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Shri Jai Shiv Shankar Traders (P) Ltd. (2016) 3783 ITR 488 (Del). The Hon'ble High Court had held that the absence of notice u/s.143(2) of the Act impregnates the proceeding with a jurisdictional defect, and hence, renders it as invalid in the eyes of law. The aforesaid view had thereafter been reiterated by the Hon'ble High Court in the case of Pr. CIT Vs. Dart Infrabuild (P) Ltd., (2024) 166 taxmann.com 4 (Del). Also, the Hon'ble High Court of Allahabad in the case of CIT Vs. Salarpur Cold Storage (P) Ltd. (2015) 228 Taxman 48 (Allahabad) had after relying upon the judgment of the Hon'ble Apex Court in the case of CIT Vs. Hotel Blue Moon (supra), held that the requirement of issuance of notice u/s.143(2) of the Act was mandatory and cannot be brought within the meaning of a procedural irregularity. The Hon'ble High Court of Madras in the case of Sapthagiri Finance & Investments Vs. ITO, (2012) 25 taxmann.com 341 (Mad), has held that where the A.O found that there was a problem in the "return of income" filed by the assessee u/s.148 of the Act, which required an explanation, then he ought to have followed up by a notice u/s.143(2) of the Act. The Hon'ble High Court of Delhi in t....