Loading judgment…
Facts
The assessee filed a belated return of income, which was treated as invalid. The Assessing Officer (AO) completed the assessment under Section 144 of the Income Tax Act without issuing a notice under Section 143(2). The CIT(A) dismissed the assessee's appeal.
Held
The Tribunal held that the assessment completed without issuing notice under Section 143(2) of the Act is a violation of mandatory legal requirements, even if the return was filed belatedly. The assessment order was therefore considered invalid.
Key Issues
Whether the assessment order is invalid due to the absence of a notice under Section 143(2) of the Act, despite a belated return being filed by the assessee.
Sections Cited
144, 69A, 143(2), 148, 292BB
AI-generated summary — verify with the full judgment below
Detected automatically from the text. The count shows how many other judgments on BharatTax rely on the same authority.
Income Tax Appellate Tribunal, DELHI
ORDER PER YOGESH KUMAR, U.S. JM: The present appeal is filed by the Assessee against the order of Ld.
Commissioner of Income Tax (Appeals/National Faceless Appeal Centre (‘Ld. CIT(A)/NFAC’ for short), New Delhi dated 18/12/2024 for the Assessment Year 2017-18.
Brief facts of the case are that,an assessment order came to be passed on 26/12/2019 u/s 144 of the Income Tax Act, 1961 ('Act' for short) by making addition of Rs. 51,80,801/- u/s 69A of the Act.
Aggrieved by the assessment order dated 26/12/2019, the Assessee preferred an appeal before the Ld. CIT(A). The Ld. CIT(A) vide order dated 18/12/2024, dismissed the Appeal of the Assessee. As against the order of the Ld. CIT(A) dated 18/12/2024, the Assessee preferred the present Appeal. has been completed without issuing notice u/s 143(2) of the Act, which is blatant violation of mandatory requirement of law. The Ld. Assessee's Representative relied on the various judicial pronouncements and sought for setting aside the assessment order.
Per contra, the Ld. Department's Representative submitted that the Assessee filed belated return, therefore, the A.O. need not issue the notice u/s 143(2) of the Act, further submitted hat the addition has been made on the merits in order to recover the actual tax due from the Assessee, therefore, submitted that the Grounds of Appeal of the Assessee are devoid of merit, thus, sought for dismissal of the Appeal of the Assessee.
We have heard both the parties and perused the material available on record. The Assessing Officer at Para 4 of the assessment order mentioned that the Assessee has failed to furnish return of income for the year under consideration and proceeded to complete the assessment of ‘best Judgment assessment’. The Assessee filed return of income on 30.04.2022 against the notice u/s 148 of the Act dated 29.03.2022 which was beyond 30 days period, the said return was treated as not a valid return and without issuing notice u/s 143(2) of the Act, A.O. completed the income of the Assessee u/s 144 of the Act. The above return is contrary to provisions of the Act as the above return appears to be a valid return in e-filling portal. Even otherwise, the return of income filed in response to notice u/s 148 of the Act cannot be declared to be invalid if the same is filed belatedly although the delay was just of 2 days from date of issue of notice u/s 148 of the Act but there was no delay if date of receipt of the notice is considered.
The Hon'ble Delhi High Court in the case of Pr. CIT vs Dart Infrabuild (P) Ltd 118 CCH 0174 (Del), held that issue of notice u/s. 143(2) is mandatory even if the return of income is filed belatedly in response to notice u/s. 148 of the Act and not issuing the notice u/s 143(2) is not a curable defect u/s. 292BB of the Act.
Further, by following the above Judgment, the Tribunal has decided the issue in favour of the Assessee in the case of ITO Vs. Artistic 2023 dated 05.05.2025 and Reena dated 04.06.2025 where the order u/s 144 of the Act was quashed in the absence of service of notice u/s 143(2) of the Act even in case of a belated return of income. Similar view was taken by the Hon'ble Jurisdictional Delhi High Court in the case of PCIT vs. Shri Jai Shiv Shankar Traders (P.) Ltd. 383 ITR 448 (Delhi), CIT vs. Delhi Kalyan Samiti (Del), Shaily Juneja vs. Dy. CIT W.P.(C) No.9705/2023 both dated 27.08.2024 while quashing the reassessment proceedings for not issuing notice u/s 143(2) of IT Act.
Considering the above facts and circumstances, as the assessment has been completed without issue of notice u/s 143(2) of the Act despite a valid return available on record, the assessment order becomes invalid in law. Accordingly, we set aside the assessment order and the impugned order of the Ld. CIT(A).
Since, we have set aside the assessment order on technical ground, other grounds of Appeal on merits, requires no adjudication.
In the result, Appeal of the Assessee is partly allowed.