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4.2. In the case of Maya Debi Bansal 117 ITR 125(CAL), the Hon'ble Court found that the return of income was filed in the wrong form and therefore not valid. Accordingly, Hon'ble High Court held that the assessment made u/s 143(3) was void ab initio and as such the Tribunal was not right in treating the assessment as best judgement assessment as if no return had been filed. 4.3. As can be seen from the above, the facts in the case of the appellant are not same. In the case decided by the Hon'ble High Court, Calcutta, the main issue was that the return of income filed in wrong form was valid or not. In view of the above and also with utmost respect to the Hon'ble Court, it may be stated that it is not having binding force on the instant case. In view of the above, the assessment order issued by the AO is held to be valid and therefore the first two grounds of the appellant are dismissed.‖ 3.1 With regard to the merits, the Ld.CIT(Appeals) deleted the addition of Rs.40 lakhs and confirmed the addition of Rs.10 lakhs. Aggrieved by the order of the CIT, the assessee is in appeal before us. 3.2. Ld.AR appearing for the assessee argued that for the A.Y 2008-09 the assessee filed by the Return of Income on 24.11.2010 beyond the due date specified u/s 139(1) of I.T.Act. There is no valid return available to the assessing officer to make the assessment u/s 143(3) of I.T.Act. The assessing officer should have issued the notices u/s 148 to regularize the return filed belatedly on 24.11.2010. Non issue of notice M.Praveena made the return filed as non-est and in capable of making the assessment u/s 143(3) and cannot be survived according to law. 3.3. On the other hand Ld. DR argued that the assessee had not filed the return of income but the AO issued the notice u/s 143(2) and subsequently notices u/s 143(2)/142(1) and framed the assessment u/s 143(3) of I.T Act instead of making assessment under section 144 of I.T.Act. The Ld. DR argued that the assessing officer has misquoted the relevant section of Income Tax Act under which the assessment was made. Merely misquoting the section is not fatal to the assessment. The assessee has not filed the return of income before the due date and non compliance of statute should not conform the undue right to the assessee. Even otherwise the assessing officer had issued show cause notice before passing the assessment order and satisfied the condition for making the assessment u/s 144. Hence it should be construed that the assessment was made u/s 144 and the A.O has erroneously mentioned the section 143(3) instead of 144.

3.4. We have heard both the parties and perused the material on record. In this case, the assessee has filed the return of income on M.Praveena 24.11.2010 and the return filed was beyond the due date permitted in law. The Income tax returns filed beyond the due date held to be nonest and cannot be treated as valid returns for further action. Therefore, no action is possible on the return filed by the assessee on 24.11.2010 unless the return is validated by issue of notice u/s 148 for escapement of income. However Ld. DR argued that A.O has misquoted the Section 143(3) instead of Section 144 and mere misquoting of section does not render the valid assessment as invalid. The assessing officer is authorized to make the assessment u/s 144 of Income Tax Act even if there is no return of income. The procedure laid down under section 144 for passing the assessment is as under:

(i) If the assessee fails to furnish the return of Income and
(ii) The assessing officer should issue show cause notice taking in to all the relevant materials and after giving an opportunity the assessing officer can make the assessment u/s 144.

3.6. In the instant case, the assessee has not filed the Return of Income and the assessing officer had issued the show cause notice with all the relevant information vide show cause notice dated28th December, 2010 and made the assessment. Since the M.Praveena assessing officer has satisfied all the conditions for completing the assessment u/s 144, the assessment made vide order dated 30.12.2010 should be construed as the assessment rightly made under section 144 of I.T.Act. and the A.O misquoted the Section 143(3) instead of 144. Mere misquoting of section should not be fatal to assessement when the assessee was given due opportunity. Accordingly we uphold the order of the CIT (A) and dismiss the appeal of the assessee on these grounds.