RENUKABEN D. PATEL,AHMEDABAD vs. ITO WARD-3(2)(4),, AHMEDABAD

Assessee has taken six grounds of appeal, which are not in consonance with Rule 8D of the Income Tax (Appellate Tribunal) Rules; they are descriptive and argumentative in nature. In brief, her grievance revolves around a single issue viz. the ld.CIT(A) has erred in upholding reopening of assessment.

Appeal to the CIT(A) did not bring any relief to the assessee.

Before us, the ld.counsel for the assessee while impugning orders of the ld.Revenue authorities has raised three fold submissions. He contended that an application for permission to raise additional ground of appeal was filed in the Tribunal on 2.2.2019. This ground is a legal ground, whereby the assessee has pleaded that assessment order passed under section 144 r.w.s. 147 without issue of notice under section 143(2) of the Act, is invalid and deserve to be quashed. For buttressing this contention of the assessee and his proposition, he contended that the assessee has filed copy of letter before the AO contending therein that she has filed return of income under section 139(1) of the Act and that return be treated as return in response to notice under section 148. Once that letter was being filed by the assessee before obtaining reasons for reopening, then on such 4 returns a notice under section 143(2) ought to be issued before taking up the assessment proceedings. The ld.counsel for the assessee drew our attention towards page no.51 of the paper book, whereby copy of letter dated 21.9.2016 filed before the ld. AO on 9.11.2016 is available. He also drew our attention towards page no.53 where computation of income for this assessment year is available. He also drew our attention towards acknowledgement of return filed by the assessee available on supplementary paper book. This return was filed on 30.3.2013. Apart from that, he relied upon the judgment of Hon’ble Delhi High Court in the case of CIT Vs. Jai Shiv Shankar Traders P.Ltd. and in the case of CIT Vs. Greater Noida Industrial Development Authority. He placed on record copies of these judgments.

On the direction of the Tribunal, Revenue has produced the record. Copy of the letter dated 21.9.2016 is available on the file of Revenue. Though in the copy filed before the Tribunal certain hand-writing narrations available in the original, are not part of the letter filed in the paper book. In the original letter available in the assessment record, the counsel for the assessee put in his hand-writing that return filed originally be treated as filed in response to this notice.

With the assistance of the ld.representatives, we have gone through the record carefully. There is no dispute with regard to the proposition that if an assessee has filed return in response to notice under section 148 then the AO was duty bound to issue notice under section 143(2) for taking cognizance of such return. It is also important to note that a perusal of section 143(2) contemplates two conditions, viz. it gives power to the AO to 5 scrutinize the return filed under section 139(1) and such power are to be exercised within the time limit provided in the proviso appended to this section; second condition is that before issuing a questionnaire it contemplates for providing an opportunity to the assessee what he/she wants to submit in support of his return filed under section 139(1) of the Act. As far as assumption of jurisdiction for scrutinizing the return is concerned, that situation is not available in the present proceedings, because, the assessment has been commenced under section 148 for reopening. The AO has assumed jurisdiction by virtue of section 148. The second situation is that in response to the notice under section 148 the assessee should file return, and thereafter the AO would issue notice under section 143(2) providing an opportunity to the assessee to submit anything in support of the return. In the present case, 148-notice was issued on 25.2.2016. The assessee did not file return upto September, 2016. For the first time, a letter was submitted by the assessee pleading therein that original return filed by her to be treated in response to the notice under section 148 of the Act. However, prior to that the ld.AO has already set the assessment machinery in motion, and issued questionnaire under section 142(1). In this situation, we are of the view that the AO is not depended upon the assessee to commence assessment proceedings. Once he has given an opportunity to the assessee to submit return in 30 days or in a particular time along with notice under section 148, and the assessee failed to file return in that time, then he has set the assessment machinery in motion. Thereafter assessee cannot complain that on that return he has not issued notice under section 143(2) of the Act. Let us take an example; the assessee

In the next fold of contentions, the ld.counsel for the assessee submitted that while granting approval, the Joint Commissioner has not recorded a satisfaction. Therefore, the assessment order deserves to be quashed.

With the assistance of the ld.representatives, we have gone through the record carefully. We have gone through the letter dated 17.2.2016 vide which approval of Joint Commissioner to the AO for reopening of the assessment was granted. This letter reads as under: “No.Jt.CIT/R-3(2)/u/s.l48/RDP/2015-16 Date:17/02/2016 The Income Tax Officer Ward3(2)(4), Ahmedabad. Sub: Approval for issue of notice u/s.148 of the I.T.Act in the case of Renukaben Dineshbhai Patel for A.Y.2012-13-reg. Reference is invited to your proposal dated 11.02.2016 for initiating proceedings u/s.148 of the Income Tax Act. 2. The records of the assesses and reasons recorded by you for initiating proceedings u/s.147 of the Income Tax Act for Assessment Year 2012-13 have been gone through and considered by the undersigned.