The Tax Publishers2020 TaxPub(DT) 5408 (Del-Trib)

INCOME TAX ACT, 1961

Section 147

When there was no valid return available before AO as assessee neither filed original return under section 139(1) nor filed any return in response to the notice issued under section 148 within the prior limit of 30 days as stated in the notice under section 148, there is no requirement of issuance of notice under section 143(2).

Reassessment - Validity - Non-issuance of notice under section 143(2) - No valid return filed by assessee

Assessee challenged legality of reassessment order passed by issuing notice under section 148 on the ground that no valid notice under section 143(2) was issued which is mandatory when case is reopened by AO. Held: The assessee neither filed original return under section 139(1) nor filed any return in response to the notice issued under section 148 on 30-3-2017 within the prior limit of 30 days as stated in the notice under section 148. It filed the return of income only on 23-9-2017. Therefore, these returns cannot be considered as a return in response to the notice under section 148. Therefore, the return filed by the assessee was as such non-est. There is no requirement of issuance of notice under section 143(2), when there is no valid return available before AO. However, the judicial precedent clearly says that while framing the assessment order under section 143(3) read with section 147, AO must issue a notice under section 143(2) as per the proviso to section 143(2) which provides specifically that where a return has been filed by the assessee, either under section 139 or under section 143(1) or under section 148. In this case, there was no such return filed by the assessee. In view of this, it is categorically held that there is no infirmity in holding that there is no requirement of issue of notice under section 143 in the present case.

REFERRED :

FAVOUR : Against the assessee.

A.Y. : 2010-11



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