TaxTMI 
TaxTMI 
2026 (9) TMI 873
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....rder was invalid in absence of valid notice u/s 143(2) of the Act, ignoring the fact that notice u/s 143(2) of the Act was issued on 19.09.2018 after considering the request of the assessee submitted vide letter dated 24.05.2018 requesting the AO to treat the original return filed as return in response to notice u/s 148 of the Act. (ii) Whether, on the facts and in the circumstances of the case and in law, the learned Tribunal was justified in not appreciating the fact that the AO had treated original return filed by the assessee as return filed in response to notice u/s 148 of the Act on the basis of assessee's written request vide letter dated 24.05.2018 and accordingly had uploaded the same on 24.05.2018 on ITD/ITBA to complete the on-going assessment proceedings. (iii) Whether, on the facts and in the circumstances of the case and in law, the learned has Tribunal erred in not considering the fact that once notice u/s 143(2) was issued on 19.09.2018 and served on the assessee, accepting the original return filed as return in response to notice u/s 148 of the Act, there was no requirement in law to issue a notice u/s 143(2), in response to the return of income f....
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....see, setting aside the re-assessment proceedings by relying upon the decision of this Court in case of PCIT Versus Marck Biosciences Ltd. reported in (2019) 106 taxmann.com 399 (Gujarat) wherein, it is held as under: "9. In the light of the submissions advanced by the learned advocates for the respective parties the court is of the view that the matter requires consideration. Hence, Admit. The following substantial question of law arises for consideration: Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in treating the assessment as invalid on the ground that no notice under section 143(2) of the Income Tax Act, 1961 had been issued after the assessee filed the return of income? 10. The facts are not in dispute. The Assessing Officer initially issued notice under section 148 of the Act on 20.03.2009, seeking to reopen the assessment of the respondent assessee for assessment year 2005-06. Subsequently, notices under section 148 of the Act came to be issued to the assessee on 26.03.2009, 08.03.2010, 05.07.2010 and lastly on 04.10.2010. 11. It may be noted that the Assessing Officer recorded ....
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....laim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or 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 under-stated 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: Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. 14. On a plain ....
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....ed income of the block period in the manner laid down in section 158-BB and the provisions of section 142, sub-sections (2) and (3) of section 143, section 144 and section 145 shall, so far as may be, apply;" An analysis of this sub-section indicates that, after the return is filed, this clause enables the assessing officer to complete the assessment by following the procedure like issue of notice under sections 143(2)/142 and complete the assessment under section 143(3). This section does not provide for accepting the return as provided under section 143(1)(a). The assessing officer has to complete the assessment under section 143(3) only. In case of default in not filing the return or not complying with the notice under sections 143(2)/142, the assessing officer is authorized to complete the assessment ex-parte under section 144. 22. Clause (b) of section 158-BC by referring to sections 143(2) and (3) would appear to imply that the provisions of section 143(1) are excluded. But section 143(2) itself becomes necessary only where it becomes necessary to check the return, so that where block return conforms to the undisclosed income inferred by the authorities, the....
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....can take it that the return filed by him has become final and no scrutiny proceedings could be started in respect of that return. This is the kind of significance that has been attached to a notice under section 143(2) of the Act by the Central Board of Direct Taxes itself. 22. Section 292BB of the Act provides for a deeming provision that any notice under any provision of the Act, which is required to be served upon the assessee, has been duly served upon him in time, in accordance with the provisions of the Act. In the opinion of this Court, this section would be applicable where a notice has, in fact, been issued and a contention is raised that such notice has not been served upon the assessee or has not been served in time or has not been served properly, namely, where there is a defect in the service of notice. This provision does not apply to a case where no notice has been issued at all. In the facts of the present case, at the cost of repetition, it may be stated that no notice under section 143(2) of the Act has been issued after the assessee had filed its return of income and hence, section 292BB of the Act would not be attracted. 23. In the light of the....