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Income Tax Appellate Tribunal, DELHI BENCH “SMC-II”: NEW DELHI
Before: SHRI P.K.BANSAL
This appeal has been filed by the assessee against the order of the Ld. CIT(A) dated 16.102014.
None appeared on behalf of the assesee. I therefore decided to dispose off the appeal after hearing the Ld. DR. I noted that in this case the Ld. CIT(A) has quashed the assessment order passed by the AO u/s 147 read with section 144 as the AO did not issue any notice u/s 143(2) after submitting all the letter by the assessee that the original return filed by the assessee be treated as return filed in response to the notice u/s 143(2). The relevant finding of the Ld. CIT(A) are reproduced as under :-
“7.2.4. It is observed that the AO had issued notices u1s 142(1) along with notice us 143(2) of the Act on 07.01.2013 in the appellant's case. It is further observed that by that date, the appellant had not filed its return in compliance of notice u1s 148 of the Act. Therefore, there was no basis of issuing notice u1s 143(2) of the Act on 07.01.2013 on the part of the AO. It is a matter of record that the appellant vide its letter dated 10.01.2013, which was received by the AO on 11.01.2013, has committed before the AO that its original return of income filed on 31.03.2005 should be treated as return filed in compliance to the notice u1s 148 of the Act issued by the AO. It is also a matter of fact that no notice u1s 143(2) of the Act was issued by the AO after receipt of such letter from the appellant on 11.01.2013. The appellant has strongly relied upon the decision of Hon'ble jurisdictional ITAT Delhi Bench 'C', New Delhi in in the case of ACIT vs. Harinder Sachdewa dated 10.9.2010 wherein the Hon'ble ITA T held that it is well settled that in order to assume jurisdiction to make assessment, the AO is bound to serve the notice u1s 143(2) of the Act within the specified time upon the assessee and in failure of which the assessment proceedings would be void ab initio. The appellant has also relied upon the decision of Hon'ble Jurisdictional Delhi High Court in the case of Director of Income Tax vs. Society for Worldwide Interbank Financial Telecommunication (2010) 40 DTR (Del) 17, wherein the Hon'ble Court has held that provisions of section 143(2) make it very clear that notice can only be served after the AO has examined the return filed by the assessee. The facts of the case as well as the submissions filed by the appellant are carefully examined. The judicial pronouncements on the issue has relied upon the appellant are also gone through. It is true that no notice u/s 143(2) of the Act was issued by the AO after the appellant's submission that original return of income filed by it should be treated as return filed by it in compliance to notice u1s 148 of the Act. The earlier notice u/s 143(2) of the Act issued 2 by the AO would not come to the rescue of validity of proceedings as by that date, the appellant had not committed before the AO regarding the filing of its return. The issue of mandatory nature of notice u/s 143(2) of the Act had come for the examination of jurisdictional High Court of Delhi in the case of Alpine Electronics Asia Pte. Ltd. vs. Director General of Income Tax (2012) 341 ITR 247 (Del), wherein the Hon'ble Court has held as under: "24. Section 143(2) is applicable to proceedings under Sections 147/148 of the Act. Proviso to Section 148 of the Act protects and grants liberty to the Revenue to serve notice under Section 143(2) of the Act before passing of the assessment order for returns furnished on or before 1st October, 2005. In respect of returns filed pursuant to notice under Section 148 of the Act after 1st October, 2005, it is mandatory to serve notice under Section 143(2) o[the Act. within the stipulated time limit. " (emphasis supplied by me)
In view of the above, since the issue is squarely covered by the decision of Hon'ble Jurisdictional High Court of Delhi, the AO's action in passing the assessment order without serving notice u1s 143(2) of the Act cannot be held valid. Since the proceedings are invalidated on account of not meeting out the mandatory requirement of issuance of notice U/S 143(2) of the Act, the assessment order is liable to be quashed on this ground itself. Accordingly, the assessment order passed by the AO is quashed. The ground of appeal on the issue is therefore allowed. “
3. Since the Ld. DR even though relied on the order of the AO could not brought to my knowledge any decision contrary to the decision of the Jurisdictional High Court in the case of Alpine Electronics Asia Pte.
Ltd. vs. Director General of Income Tax (2012) 341 ITR 247 (Delhi) I therefore do not find any illegality or infirmity in the order of the Ld. CIT(A) and accordingly dismiss the appeal filed by revenue.
In the result, appeal filed by the revenue stands dismissed.
Order pronounced in the open court on 14/07/2016.