TaxTMI 
TaxTMI 
2025 (6) TMI 2116
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 8 taken before him on the very issue of notice u/s 148 of the Act. 3. The Ld. CIT(A) ought to have appreciated the fact that the assessment completed u/s 143(3) r.w.s 147 of the Act on 31.12.2019 is invalid and is without jurisdiction as no statutory notice u/s 143(2) had been issued. 4. The Ld. CIT(A) ought to have appreciated the fact that the Ld. AO erred in issuing the notice u/s 142(1)(i) of the Act dt. 06.12.2019 for calling for return of income beyond the time limit of six years and completing the scrutiny assessment on the basis of the said notice, which is invalid and is without jurisdiction. 5. The Ld. CIT(A) ought to have appreciated that the order passed u/s 143(3) r.w.s 147 of the Act dt. 31-12-2019 is invalid ab initio on the ground that no notice u/s 148 of the Act has been issued as seen from the very assessment order. 6. Without prejudicial to ground nos. 1 to 4, the Ld. CIT(A) grossly erred in not adjudicating ground nos. 9 to 18 taken before him on the non- applicability of the provisions of Section 45 r.w.s 50C of the Act. 7. Without prejudice to other grounds, the Ld. CIT(A) ought to have appreciated that the detail....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ved that a perusal of the sale deed revealed that the scheduled property was stated to be free from all defects and encumbrances. Apart from that, it was mentioned in the sale deed that if any defect in the linked documents or the title was found then the vendor shall indemnify to the vendee the FMV of the subject property as on the date of payment of the claim. 4. Accordingly, the A.O. held a conviction that the assessee had a clear title as on the date of transfer of property. Also, the A.O. was of the view that though the sale deed clearly mentioned that in case of any defects in the title, the vendee was entitled for indemnification to the extent of FMV of the property, but no such claim was made by him against the assessee seeking the returning of the amount paid towards the purchase of the property. The A.O. based on his aforesaid deliberations concluded that as the assessee had during the subject year transferred the subject property, therefore, based on the FMV of the same on the date of transfer, the Long Term Capital Gains ("LTCG") pertaining to the said transfer transaction was liable to be brought to tax in his hands. Accordingly, the A.O. based on his aforesaid deli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e same was added to the total income for the year under consideration: A. Consideration Received by the Assessee: SRO Value of the Property Rs. 78,93,000/- Total number of vendors 1 Sale Consideration received Rs. 78,93,000/- B. Indexed cost of acquisition: As the assessee failed to submit the purchase deed of property under consideration the value of the same is taken as Rs. 1,00,000/- Long Term capital Gain as discussed above (A - B ) Rs. 77,93,000/- 6.7 It is noted from the submissions furnished before this office that the appellant has stated that SRO value cannot be taken when the property is under litigation /dispute. Further the appellant has relied upon various case laws. However, the appellant has not filed any documentary evidences to substantiate his claim. Therefore, the contention of the appellant is considered but not found to be acceptable. 6.8 In view of the above, I am of the considerate view that the reason mentioned for the capital gain by the appellant is not satisfied. Therefore, the addition made by the AO is upheld. 6.9 Accordingly, all grounds of the appeal are dismissed. 6. The assessee, bein....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... now when it is a matter of fact borne from the record that the assessee had filed his return of income in compliance to the notice issued u/s 148 of the Act, dated 27.03.2019 on 11.12.2019 (e-filing acknowledgment no. 270519410111219) and the assessment had been framed by the AO vide order passed by him under Section 143(3) r.w.s. 147 of the Act, dated 31.12.2019, then how the issuance of notice under Section 143(2) of the Act was done away with, the Ld. DR reiterated that, as the impugned return of income was filed beyond the prescribed period permitted by the said notice, i.e., 30 days from the date of service, therefore, the same was invalid and non-est in the eyes of law and no notice u/s 143(2) of the Act was required to be issued by acting on the same. The Ld. DR further submitted that the notice under Section 143(2) is issued only where the AO considers it necessary or expedient to ensure that the assessee has not understated his income or computed excessive loss or has not under the paid the tax in any manner. It was, thus, the Ld. DR's claim that the AO remained under no obligation to issue notice u/s 143(2) in every case. Apart from that, the Ld. DR submitted that as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the return of income filed by the assessee on 11.12.2019 is sustainable in the eyes of law? 14. We shall first deal with the Ld. DR's contention that as the assessee had delayed the filing of his return of income in compliance to the notice issued under Section 148 of the Act, dated 27.03.2019 i.e. filed the same beyond the prescribed period of 30 days on 11.12.2019, therefore, the A.O. had rightly refrained from issuing notice u/s 143(2) of the Act, and had framed the assessment vide his order passed under Section 143(3) r.w.s. 147 of the Act, dated 31.12.2019. 15. It is a matter of fact borne from the record that the assessee pursuant to the notice u/s 148 of the Act, dated 27.03.2019, had filed his "return of income" beyond the prescribed period of 30 days i.e. on 11.12.2019. Admittedly, the A.O. not only in his order passed u/s 143(3) r.w.s. 147 of the Act, dated 31.12.2019 specifically mentioned that the assessee had filed his return of income for the subject year, but also had, inter alia, while quantifying the assessed income considered the "income from other sources" of Rs.3,47,921/- that was declared by the assessee in the said return of income. We are of the f....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 384 ITR 490 (Ker). The indulgence of the Hon'ble High Court was, inter alia, sought for adjudicating the following substantial question of law. "Whether the return filed by the assessee beyond the period stipulated u/s 139(1)/ 139(4) or Section 142(1)/ 148 can be held as non-est in the eyes of law and has invalidated for the purpose of deciding exemption u/s 80P of the Income Tax Act, 1961 ?" The Hon'ble High Court answered the aforesaid issue, and held, that the "return of income" filed by the assessee beyond the period stipulated under Section 139(1) or Section 139(4) or Section 142(1) or Section 148 can also be accepted and acted upon provided further proceedings in relation to such assessment are pending in the statutory hierarchy of adjudication in terms of the provisions of the Income-tax Act. As in the present case before us, the "return of income" filed by the assessee in compliance to the notice issued under Section 148 of the Act, dated 27.03.2019 was filed on 11.12.2019, i.e during the pendency of the assessment proceedings which had thereafter culminated vide order passed under Section 143(3) r.w.s 147 of the Act, dated 31.12.2019, therefore, we are....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ason that even if the said claim of the Ld. DR is to be accepted, the AO in the present case having disturbed the returned income of the assessee and made additions in his hands remained under an obligation to have issued notice under Section 143(2) of the Act. 17. We shall now deal with the second facet of the controversy involved in the present appeal, i.e. as to whether or not the assessment framed by the A.O. vide his order passed 143(3) r.w.s. 147 of the Act, dated 31.12.2019, in the absence of a notice u/s. 143(2) of the Act having been issued by him is sustainable in the eyes of law? 18. Apropos the validity of the assessment framed by the A.O. vide his order passed u/s 143(3) r.w.s. 147 of the Act, dated 31.12.2019, wherein he despite taking cognizance of the "return of income" filed by the assessee on 11.12.2019 in response to the notice issued under Section 148 of the Act, dated 27.03.2019 (which has been held by us hereinabove to be a valid return of income), had by treating the said "return of income" as invalid, dispensed with the statutory requirement of issuing a notice u/s 143(2) of the Act and framed the assessment vide his order passed u/s 143(3) r.w.s. 147 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Act upon the assessee, then the initiation of reassessment proceedings; order rejecting the assessee's objection against the assumption of jurisdiction for reopening and also the reference to the TPO were to be quashed. 20. Apropos the Ld. DR's claim that as the assessee in the course of the proceedings before the A.O had not objected to the assumption of the jurisdiction by him, and on the contrary participated in the assessment proceedings, therefore, the non- issuance of the notice u/s 143(2) of the Act will be saved by the provisions of Section 292BB of the Act, we are unable to concur with the same. We say so, for the reason that the deeming provisions of the said statutory provision only cure the infirmities in the manner of service of notice and is not intended to cure the complete absence of notice itself. Our aforesaid view is supported by the judgment of the Hon'ble Supreme Court in the case of CIT Vs. Laxman Das Khandelwal (2019) 417 ITR 325 (SC). The Hon'ble Apex Court relying on its earlier order in the case of ACIT Vs. Hotel Blue Moon (supra), has held that the failure to issue a notice under Section 143(2) renders the assessment order void even i....