Income Tax Appellate Tribunal - Mumbai
Nayana D. Atekar, Mumbai vs Ito Wd-23(1)(3), Mumbai on 7 February, 2019
Aayakr ApIlaIya AiQakrNa " SMC " nyaayapIz maM u b a[- mao .
IN THE INCOME TAX APPELLATE TRIBUNAL " SMC" BENCH, MUMBAI
श्री महावीर स हिं , न्याययक दस्य के मक्ष ।
BEFORE SRI MAHAVIR SINGH, JUDICIAL MEMBER
Aayakr ApIla saM . / ITA No. 3537/Mum/2018
(inaQa- a rNa baYa- / Assessment Year 2009-10)
Mrs. Nayana D. Atekar The Income Tax Officer,
H-308, Sharad Industrial ward 23(1)(3), C -10, BKC
Vs.
Estate, Lake Road, Bhandup Bandra (East) Mumbai
(W ), Mumbai-400 078
(ApIlaaqaI- / Appellant) .. (p`%yaqaaI- / Respondent)
स्थायी ले खा िं . / PAN No. AFQPA0192J
अपीलाथी की ओर े / Appellant by : Shri V.D. Parmar, AR
प्रत्यथी की ओर े / Respondent by : Shri Satishchandra Rajore, DR
ुनवाई की तारीख / Date of hearing: 07.02.2019
घोषणा की तारीख / Date of pronouncement : 07.02.2019
AadoSa / O R D E R
महावीर स हिं , न्याययक दस्य/
PER MAHAVIR SINGH, JM:
This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-40, Mumbai [in short CIT(A)], in appeal No. CIT(A)-40/IT-313/2014-15 vide dated 02.01.2018. The Assessment was framed by the Income Tax Officer, Ward-23(1)(3) (in short 'ITO/ AO') for the A.Y. 2009-10 vide dated 15.09.2014 under section 2 ITA n o .3 5 37 / Mum / 20 1 8 143(3) read with section 147 of the Income Tax Act, 1961 (hereinafter 'the Act').
2. The first issue in this appeal of assessee is against the order of CIT(A) holding that the assessment is valid despite the fact that no notice under section 143(2) of the Act was issued at all. For this assessee has raised the following ground No.2: -
"2. On the facts and circumstances of the case and in law Ld. CIT(A) erred in holding that assessment order passed under section 143(3) read with section 147 is valid in spite of the fact that no notice under section 143(2) was issued and served on assessee even though assessee requested vide letter dated 18.08.2014 to treat return filed originally for AY 2020-11 as return filed in response to notice under section 148 of the IT Act 1961. "
3. I have heard the rival contentions and gone through the facts and circumstances of the case. I find from the assessment order that notice under section 148 of the Act was issued on 12.03.2014 for the relevant AY 2009-10 and served upon the assessee. Subsequently, notice under section 142(1) of the Act was issued on 23.06.2014. The assessee in response to notice under section 148 of the Act filed a letter dated 18.07.2014 stating that the return originally filed on 12.11.2009 be treated as filed in response to notice under section 148 of the Act. The relevant text of the letter by the assessee to the AO dated 18.07.2014 read as under (copy of letter enclosed at page 14 of the assessee's paper book): -
3ITA n o .3 5 37 / Mum / 20 1 8 "1. Assessee has already filed Income Tax Return for the Assessment Years 2009-10 vide acknowledgement No. 101028040121109 dated 12.11.2009.
2. The Copy of the acknowledgement & computation of income is enclosed hereby for your record.
3. The copy of notice u/s 148 is also enclosed herewith.
4. Your honour is requested to treat above return as returned filed in response your notice under section 148."
4. This issue was raised by assessee before CIT(A) that no notice was issued under section 143(2) of the Act and CIT(A) held that since no valid return of income was filed by assessee under section 148 of the Act, there is no requirement for issuance of notice under section 143(2) of the Act.
The CIT(A) discussed this issue in Para 6.2 and upheld the validity of the assessment order by observing as under: -
6.2 So far as second ground of appeal raised by the appellant is concerned, the appellant has contended that assessment order is bad in law because no notice u/s 143(2) of the IT Act was issued by the AO. If we examine the facts of the case, we find that no return of income was filed by the appellant within the time allowed under the notice u/s 148 of the IT Act. The return of 4 ITA n o .3 5 37 / Mum / 20 1 8 income filed on 18/07/2014 is non est in the eyes of law because the same was required to be filed on or before 15/04/2014. Since no valid return of income was filed by the appellant in response to notice u/s 148 of the IT Act, question of issuing notice u/s 143(2) of the IT Act by the AO does not arise. Reliance in this regard is placed on the decision of honourable ITAT, Pune Bench in the case of Chawara Educational Trust Vs ITO 2016] 66 taxmann.com 127 (Pune - Trib.) where honourable Tribunal has held that Where assessee did not file return under section 139(1); or under section 139(4); or in response to section 148; or in response to section 142(1); Assessing Officer was not required to issue notice under section 143(2) before completing assessment under section 143(3), read with section 147 Reliance in this regard is placed on the decision of honourable ITAT, Agra Bench in the case of ACIT vs. Uday Bhagwan (2013) 33 taxmann.com 226 (Agra -Trib.) where honourable Tribunal held that "Section 143, read with sections 139, 142 and 148, of the Income-tax Act, 1961 - Assessment
- Issue of notice - Assessment year 2003-04 -5
ITA n o .3 5 37 / Mum / 20 1 8 Whether revised return filed after expiry of one year from end of relevant assessment year, was invalid and, therefore, period of issue of notice under section 143(2) could not be reckoned from furnishing of such return - Field, yes - Whether for issuing notice under section 143(2) return should have been filed under section 139 or in response to a notice issued under section 142(1) - Field, yes - Whether, where no return was filed in pursuance of notice issued under section 148, issue of notice under section 143(2) could not be held as a mandatory requirement for making assessment - Held, yes Paras 5,7 and 8] [In favour of revenue] Though the AU has not specifically rejected the belated return filed by the appellant, there is nothing on record to suggest that the AU has acted on the same. Therefore, I do not find any merit in the contention of the appellant that the AO has acceded to appellant's request to treat the return tiled earlier as return filed in response to notice u/s 148 of the IT Act. So far as contention of the appellant that the AU has not passed order uis 144 of the IT Act is concerned, I'm of the opinion that the AO has wrongly mentioned the order as passed uls 143(3) rws 147 but this mistake of the AU is condonable under section 292B of the IT Act. Moreover, in the case of ACIT vs MEGHRAJ GOLECFIA 60 6 ITA n o .3 5 37 / Mum / 20 1 8 lTD 448 (Mum) it has been held by the honourable tribunal that "Merely writing or typing s. 143(3) instead of s. 144 when the assessments were being framed, admittedly in a situation where not even a return of income was filed, cannot invalidate the assessments framed by the AO".
Accordingly, the second ground of appeal filed by the appellant is dismissed and validity of the assessment order passed by the AO is upheld.
Aggrieved, now assessee is in appeal before Tribunal.
5. I have heard the rival contentions and gone through the facts and circumstances of the case. I find from the facts of the case that the assessment was framed by the AO under section 143(3) read with section 147 of the Act vide order dated 15.09.2014. Admittedly, if the CIT(A) feels that the assessee has filed no return of income or the return filed by the assessee as null and void in the eyes of the law, the AO should have made assessment under section 144 of the Act. In the absence of return of income, no assessment can be framed under section 143(3) of the Act. For framing assessment under section 143(3), the principle requisite condition is issuance of notice under section 143(2) of the Act. Admittedly, the AO failed to issue mandatory notice under section 143(2) of the Act before proceeding to complete the assessment. This issue is covered by the decision of Hon'ble Supreme Court in the case of Vs. Hotel Blue Moon (2010) 321 ITR 362 (SC). In view of the fact, I am of the view that once no notice under section 143(2) of the Act was issued, it is a mandatory 7 ITA n o .3 5 37 / Mum / 20 1 8 jurisdictional issue and hence, assessee is invalid. Hence, I quash the assessment order and allow this appeal of the assessee.
6. In the result, the appeal of assessee is allowed.
Order pronounced in the open court on 07.02.2019. Aado S a kI Gaao Y aNaa Ku l ao mao idnaM k 07.02.2019 kao kI ga[- .
Sd/-
(महावीर स ह
िं /MAHAVIR SINGH)
(न्याययक दस्य/ JUDICIAL MEMBER)
मुिंबई, ददनािंक/ Mumbai, Dated: 07.02.2019. सुदीप सरकार, व.निजी सचिव / Sudip Sarkar, Sr.PS आदे श की प्रनिलिपप अग्रेपिि/Copy of the Order forwarded to :
1. अपीलाथी / The Appellant
2. प्रत्यथी / The Respondent.
3. आयकर आयुक्त(अपील) / The CIT(A)
4. आयकर आयुक्त / CIT
5. ववभागीय प्रयतयनधि, आयकर अपीलीय अधिकरण, मिंब ु ई / DR, ITAT, Mumbai
6. गार्ड फाईल / Guard file.
आदे शािुसार/ BY ORDER, त्यावपत प्रयत //True Copy// उप/सहायक पंजीकार (Asstt. Registrar) आयकर अपीिीय अचिकरण, मुिंबई / ITAT, Mumbai