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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’ : NEW DELHI
Before: SHRI AMIT SHUKLA
Aforesaid appeal has been filed by the assessee against the impugned order dated 09.04.2021 passed by National Faceless Appeal Centre, Delhi for the quantum of assessment passed under section 147/144 of the Income-tax Act, 1961 (for short ‘the Act’) for the assessment year 2012-13.
In various grounds of appeal, the assessee has challenged the addition of cash deposit of Rs.12,15,000/- as alleged unexplained cash deposited in the bank account of the assessee u/s 69A of the Act. Apart from that, assessee also raised additional ground that no notice u/s 143(2) was issued in response to the return filed by the assessee subsequent to the issuance of notice u/s 148.
2 ITA No.671/Del./2021 3. Brief facts qua the legal issue raised are that, as per Non PAN AIR information, it was noticed that the assessee had made cash deposit of Rs.12,15,000/- in a saving bank account in the AY 2012-13 and assessee had not filed the return of income. Accordingly, the AO acquired jurisdiction u/s 147/148 to bring the cash deposits as income escaping assessment to tax. The assessee in response to notice u/s 148 dated 29.03.2019, filed return of income on 19.11.2019. The AO however, noted that assessee had not filed the income tax return in response to issuance of notice albeit same has been filed u/s 119(2)(b) on 19.11.2019. On merits, the assessee’s contention was that she was engaged in the business of online survey of feedback of products and the cash deposited was related to day-to-day business activities. However, AO on the basis of his own verification found that assessee has joined Speak Asia in 2011 and submitted the bills for FY 2010-11 relevant to AY 2011-12. Thus, the explanation given by the assessee is nothing but an after-thought. Further assessee had not filed any concrete evidence about the cash deposit of Rs.12,15,000/- and accordingly, the same was added u/s 69A. Ld. First Appellate Authority after detailed reasoning has dismissed the assessee’s appeal on merits.
Before us, ld. counsel for the assessee submitted that here in this case, once the return was filed in response to notice issued u/s 148, the AO should have issued notice u/s 143(2); and AO in his assessment order has accepted the income declared in the income-tax return of Rs.1,45,500/-. Thus, the return of income filed by the assessee has been accepted by the AO. He further pointed out that AO has wrongly mentioned that return was wrongly filed u/s 119(2)(b) instead of u/s 148. In support, he has filed the details of income-tax
3 ITA No.671/Del./2021 website portal, details of which are in the paper book, stating that the assessee has filed the return u/s 148. Apart from that, it is an admitted fact that no notice u/s 143(2) was issued even the assessment order is silent on this point.
On the other hand, ld. DR for the Revenue submitted that the AO has categorically mentioned that the return was not filed in response to notice u/s 148 but u/s 119(2)(b). Once the assessee has not filed any return u/s 148 then there is no question of issuance of notice u/s 143(2). On the last occasion, the Tribunal has directed the AO to submit the report to verify this fact. AO has submitted the report that assessee had filed the ITR on 19.11.2019 which was filed u/s 119(2)(b) and also enclosed the screen-shot from the income-tax e-filing portal wherein it is mentioned that the appeal has been filed u/s 119(2)(b). He also submitted that there is no condonation of delay in filing of income-tax return, accordingly the ITR filed u/s 119(2)(b) could not be considered a valid ITR and in such a situation, the AO could not issue notice u/s 143(2).
I have considered the rival submissions and also perused the relevant facts qua this issue involved. The assessee’s contention is that assessee has filed return in response to notice u/s 148, whereas the Revenue’s contention is that assessee has filed return for the assessment year 2012-13 on 19.11.2019 u/s 119(2)(b), which is almost after more than 7 years from the due date of filing of return of income filed for the AY 2012-13. This return has been stated to be filed u/s 119(2)(b) and, therefore, this return could not be considered as valid ITR and accordingly, there was no requirement of issuance of notice u/s 143(2). First of all, AO in the assessment order has proceeded to make the computation of income and assessed the
4 ITA No.671/Del./2021 ITA No. income as per the return of income filed on 19.11.2019 which has income as per the return of income filed on 19.11.2019 income as per the return of income filed on 19.11.2019 been accepted by the AO. Be that as it may be, the assessee has filed been accepted by the AO. Be that as it may be, the assessee has filed been accepted by the AO. Be that as it may be, the assessee has filed the screen-shot of the e shot of the e-filing return wherein it mentions that the filing return wherein it mentions that the return has been filed u/s 148. S return has been filed u/s 148. Scanned copy is as under : canned copy is as under :-
Whereas the Revenue’s screen shot has given the following details :- Whereas the Revenue’s screen shot has given the following details : Whereas the Revenue’s screen shot has given the following details :
5 ITA No.671/Del./2021 7. Section 119(2)(b) reads as under :-
“119. ...... ....... (b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorise any income-tax authority, not being a Commissioner (Appeals) to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law;”
Thus, the Board has been given the power that in case of any
genuine hardship, to admit the application for any exemption,
deduction, refund or any other relief under this Act after the expiry of
the period specified by or under this Act for making such application
or claim and deal with the same on merits in accordance with law.
Thus the pre-requisite condition is that, firstly, the assessee has to file
application for a claim for any exemption, deduction, refund or any
other relief to the Board; and secondly, Board if considered it desirable
or expedient for avoiding any general hardship may authorize any
income-tax authorities to accept this application. Nowhere in the
record which is even admitted by the AO in his remand report that the
assessee has ever made any application before the CBDT. Not only
6 ITA No.671/Del./2021 that, there is no claim for any exemption, refund or any other relief by
the assessee. It is not understandable, how and under what
circumstances the return of income for AY 2012-13 filed on
19.11.2019 can be stated to be u/s 119(2)(b) as shown in e-filing
portal submitted by the AO. On the contrary screen-shot of filing of the
return by the assessee is shown as filed in response to the notice u/s
Once there is no application filed by the assessee, then there
cannot be any return u/s 119 (2)(b). In any case, CBDT Circular
No.9/2015 dated 09.06.2015 had clearly instructed that no
condonation application for claim of refund/loss within the scope of
section 119(2)(b) shall be entertained beyond six years from the end of
the assessment year for which such application/claim is made. Here
in this case, six years had expired on 31.03.2019, whereas the
assessee had filed the return on 19.11.2019. Thus, even as per the
CBDT Instruction/Circular (supra), such a return could not have been
entertained u/s 119(2)(b). Accordingly, I hold that it is not a return
u/s 119(2)(b) albeit it is a return filed in response to notice u/s 148
which has been accepted by the AO. Thus, when return has been filed
in response to notice u/s 148 then it was mandatory for AO to issue
notice u/s 143(2) before the completion of assessment, in case he
wanted to vary the return of income and make addition. Accordingly,
7 ITA No.671/Del./2021 the additions made by the AO are deleted on the ground that the
statutory requirement of issuance of notice u/s 143(2) is not complied.
Accordingly, the additions are deleted.
The other grounds are not adjudicated upon as the same are
become purely academic and dismissed as infructuous.
In the result, the appeal filed by the assessee is partly allowed.
Order was pronounced on 4th day of May, 2022.
Sd/- (AMIT SHUKLA) JUDICIAL MEMBE R Dated: 04.05.2022 TS