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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI C.M. GARG, & SHRI O.P.MEENA, ACCOUTANT MEMBER
आदेश /O R D E R PER O.P. MEENA, AM. 1. Though these two appeals, the assessee has taken as many as 7 grounds of appeal however, ground 1 relates validity of assessment framed under section 147 for A.Ys. 2007-08 and 2008-09 which read as under:
Gurucharan Singh vs. ITO /ITA No.377 & 378/Ind/14 A.Y.07-08 Page 2 of 6
“That the Ld. CIT(A) had erred in facts and in law in
upholding the validity of assessment framed under
section 147. The reassessment completed on the
basis of notice u/s 143(2) of the Income Tax Act prior
to expiry of time u/s 143(2) issued is illegal.”
Since facts for both years ie. A.Ys. 2007-08 and 2008-09
are identical, hence, we are discussing facts of A.Y. 2007-
08 in I.T.A No. 377/In/2014 which would also apply for
A.Y. 2008-09 in ITA No.378/In/2014 also. During the
course of hearing no one has appeared on behalf of the
assesse however written submissions were filed on
24.10.2016 with a request that same may be considered
while deciding the appeal, therefore, we considered the
same while adjudicating this appeal.
Brief facts are that the assessee has filed a return of
income on 21.08.2009 and notice u/s 148 of the Act was
issued to assessee on 01.09.2010 as per written
submissions it was submitted that a notice u/s 143(2) has
to be served before the expiry of 6 months from the end of
the F.Y. and which the return is furnished. Whereas in
case of appellant the proceedings u/s 148 were initiated on
Gurucharan Singh vs. ITO /ITA No.377 & 378/Ind/14 A.Y.07-08 Page 3 of 6
01.09.2010 i.e. before 30.09.2010 meaning by time of issue
of notice u/s 143(2) of the Act has not expired. The AO
should first exhaust the remedy available u/s 143(2) of the
Act. The act of issuing a notice u/s 148 prior to expiry of
time frame within which notice u/s 143(2) can be issued is
illegal as held by Madras High court in the case of CIT vs.
Qatalys Software Technologies (2009) 308 ITR 249 because
the return filed by assessee is only processed u/s 143(1)
but the proceedings cannot be said to have terminated,
action u/s 147 could not be initiated. The same view has
been expressed by Calcutta High Court in the case of
CESC Ltd. vs. DCIT (2003) 263 ITR 402 and also in case of
CIT vs. Rajendraji Shah 247 ITR 772 and Vipin Khanna vs.
CIT 255 ITR 220. In view of above, the notice issued and
served by the Ld. AO was abinitio void, invalid and bad in
law as the time of regular assessment was not elapsed and
the proceedings consequent to such invalid notice was bad
in law and, therefore, deserves to be quashed. The assessee
has also placed reliance on the decision of jurisdictional
I.T.A.T., Indore in the case of ITO vs. Vijay Boreeelles
(2008-10 ITJ-473-I.T.A.T. Indore) and also in the case of
Gurucharan Singh vs. ITO /ITA No.377 & 378/Ind/14 A.Y.07-08 Page 4 of 6
Nizam’s Supplemental Family Trust vs. CIT (2000) 242 ITR
381 (Hon'ble Supreme Court).
On the other hand, ld. DR relied on the orders of the
lower authorities.
We have considered the facts and perused the material
on record. Ongoing, through written submissions of the
assessee, it is seen that the assessee has filed a return of
income on 28.08.2009 whereas the notice u/s 148 of the
Act was issued on 01.09.2010. We also noted that
according to provisions of section 143(2) as stood at the
relevant time for assessment year under consideration, the
notice u/s 143(2) can be served before the expiry of 6
months from the end of the F.Y. in which return was
furnished, therefore, in the instant case the return was
furnished during the F.Y. 2009-10. Accordingly, the notice
u/s 143(2) could be issued in this case on or before
30.09.2010. However, we find that before the issue of
notice u/s 143(2). The AO has issued a notice u/s 148 on
01.09.2010. When the time limit for normal assessment
u/s 143(3) was already available, therefore, assessment
u/s 147 which is extraordinary mechanism get when time
Gurucharan Singh vs. ITO /ITA No.377 & 378/Ind/14 A.Y.07-08 Page 5 of 6
limit for regular assessment u/s 143(3) was pending. The
assessee while filing written submission relied in the case
of Madras High Court in the case of CIT vs. Qatalys
Software Technologies (supra) and Hon'ble Calcutta High
Court in the case of CESC Ltd. vs. DCIT (supra), and
further reliance is placed in the case of CIT vs. TCP Ltd.
(2010) 235 CTR 414 (Mad) wherein it was held that notice
u/s 148 cannot be issued for making an assessment u/s
147 when time limit is available for issue of notice u/s
143(2) for making an assessment under section 143(3).
Similar ratio was also laid down in the case of Vipin
Khanna vs. CIT (Supra) and others relied by the assessee.
In the light of forgoing discussions, we are of the
considered opinion that proceedings u/s 147 initiated
when the time limit for issue of notice u/s 143(2) for
making regular assessment u/s 143(3) were available
hence the proceedings initiated u/s 147 by issue of notice
u/s 148 is void ab initio. Accordingly, assessment
proceedings are quashed for the A.Y. 2007-08 and 2008-
Accordingly, this ground of appeal is allowed.
Gurucharan Singh vs. ITO /ITA No.377 & 378/Ind/14 A.Y.07-08 Page 6 of 6
Since, we have quashed the assessment proceedings on the basis of legal ground of issue of notice u/s 148 of the Act, therefore, we are not deciding the other grounds on merits. As same becomes infructuous does not required any adjudication. Accordingly, the other grounds are treated as dismissed.
In the result, the appeal of the assessee is partly allowed for A.Y. 2007-08 (ITA No.377/In/2014) and A.Y. 2008- 09(ITA NO.378/In/2014).
The order pronounced in the open Court on 11.08.2017
Sd/- Sd/-
( C.M. GARG) (O.P. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER �दनांक /Dated : 11th August, 2017 Patel/PS Copy to: Assessee/AO/Pr. CIT/ CIT (A)/ITAT (DR)/Guard file. By order Assistant Registrar, Indore