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Facts
The assessee filed appeals against the orders of the CIT(A) for assessment years 2009-2010 and 2011-2012. The core issue revolved around the validity of notices issued under Section 143(2) of the Income Tax Act, which referred to returns allegedly filed on a non-existent date.
Held
The tribunal held that the notices issued under Section 143(2) were invalid as they were based on a non-existent return. Consequently, the assessments made pursuant to these invalid notices were also quashed.
Key Issues
Validity of notice issued u/s.143(2) when based on a non-existent return; whether such defect is curable under Sec.292B or 292BB of the Act.
Sections Cited
147, 148, 143(2), 139, 142(1), 292B, 292BB
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Income Tax Appellate Tribunal, RANCHI BENCH, RANCHI
Before: SHRI GEORGE MATHAN, JM & SHRI RATNESH NANDAN SAHAY, AM
आदेश / O R D E R Per Bench :
These two appeals are filed by the assessee against the order passed by the ld.CIT(A), Ranchi, dated 13.10.2016 & 21.10.2016 for the assessment years 2009-2010 & 2011-2012.
It was submitted by the Ld. AR that for the impugned assessment year the assessee filed an original return on 31/03/2013. The ld. AR drew our attention to page 3 of the paper book, which is the copy of the return which reads as follows :-
It was the submission that notice U/s.148 of the Act was issued on the assessee on 21/08/2012. It was the submission that subsequently notice U/s.143(2) of the Act came to be issued on 03.03.2014. The Ld. AR drew our attention to page 4 of the paper book which is the copy of the notice issued u/s.143(2) of the Act which reads as follows :-
It was the submission that the Ld.AO has issued the notice u/s.143(2) of the Act in the respect of return of income allegedly filed by the assessee on 31/10/2009. It was the submission that no return has been filed by the assessee for the assessment year 2011-12 on 31/10/2009 as it would not possible for the assessee to filed the return. It was the submission that the return of income has been filed by the assessee on 31/03/2013 is considered, then the said u/s.143(2) of the Act notice cannot be considered in regard to the said return because of the notice u/s.148 of the Act has been issued on 21/08/2012. It was the submission that as the notice u/s.143(2) of the Act has been wrongly issued, there is no valid notice u/s.143(2)of the Act and consequence of the said notice/s.143(2) of the Act is liable to be quashed. It was the submission that even if the department is to assume that the return filed by the assessee is in response to the notice issued u/s. 148 of the Act even then the notice u/s.143(2) of the Act was to be issued within 6 months from the end of the financial year in which the return has been filed and that would be September, 2013. The notice u/s.143(2) of the Act having been issued on 03.03.2014 was also time barred.
In reply, ld. Sr. DR submitted that the date of 31/10/2009 in the notice u/s.143(2) notice of the Act is a typographical error.
To this, the Ld.AR submitted that for the assessment year 2009-10 also which is an appeal in ITA 10/RAN/2017, the AO has issued the notice u/s.143(2) of the Act on 01/01/2014, wherein also the same wordings are used and talk about the returned filed on 31/10/2009. The Ld.AR draw our attention to page 5 of the paper book which reads as follows:-
It was submission that there is no return of income either for the assessment 2009-10 or 2011-12 filed on 31/10/2009. It was submission that admittedly the AO was doing simultaneous assessments for both the assessment years 2009-10 and 2011-12 and the notices have been issued in confusion, insofar as even for the assessment order 2011-12 the AO mentions the assessment year 2009-10 in top of the assessment order. It was submission that as there is no return of income filed on 31/09/2009, the notice issued under 143(2) of the Act is invalid notice and consequently the assessment done on the basis of an invalid notice, is liable to be quashed.
We have considered the rival submissions. A perusal of the provision of section 143(2) of the Act shows that the wordings are “where a return has been furnished u/s.139 of the Act, or in response to a notice under sub- section (1) of Section 142 of the Act, the Assessing Officer shall…….made in the return is, inadmissible…”. Now reading of the provision of section 143(2) of the Act clearly shows that there should be a return and it is that return which should be brought into question in the notice u/s.143(2) of the Act. For the assessment year 2011-12 the return has been filed originally on 31/03/2013 and in response to the notice u/s.148 of the Act a letter has been filed on 15/07/2013 requesting to treat the return filed on 31/03/2013 as the return in response to the u/s.148 of the Act. For the assessment year 2009-10, the return was filed on 30/10/2009 and in response to notice issued u/s.148 of the Act a letter has been filed on 15/07/2013 requesting that the said return filed on 30/10/2009 is to be considered as the return in response to the notice u/s.148A of the Act. There is no return dated 31/10/2009 either for the assessment year 2009-10 or for the assessment year 2011-12. Consequently, as the notice issued u/s.143(2) of the Act is on a non-existence return, the notice issued u/s.143(2) of the Act becomes invalid and consequential assessment in consequence to the invalid notice u/s.143(2) of the Act would also stand also become invalid. We are live to