The Tax Publishers2019 TaxPub(DT) 5200 (Guj-HC) : (2020) 423 ITR 0106

INCOME TAX ACT, 1961,

Sections 147, 143 & 142(1)

Though AO issued notice under section 148 for reassessment during pendency of assessment proceedings initiated by issuing of notice under section 142(1), therefore, assessment made under section 143(3) read with section 147 was bad in law and could not be sustained.

Reassessment - Notice under section 148 - Issued during pendency of assessment proceeding -

AO issued notice under section 142(1) to assessee to file return of income, but the same was not filed by the assessee. During pendency of assessment proceedings under section 142(1), AO passed assessment order under section 143 read with section 147, wherein addition on account of unexplained expenditure was made, which was confirmed by CIT(A). Tribunal treated the assessment order under section 143 read with section 147 as wrong, invalid and bad in law because the assessment proceedings initiated under section 142(1) by the AO was already pending on date of issuing notice under section 148. Held: It is settled law that unless the return of income already filed is disposed of, the notice for reassessment under section 148 cannot be issued, i.e. no reassessment proceedings can be initiated so long as the assessment proceedings pending on the basis of the return already filed are not terminated. The AO had issued notice under section 148 for reassessment during the pendency of assessment proceedings initiated by issuing of notice under section 142(1), therefore, the assessment made under section 143(3) read with section 147 was bad in law and could not be sustained. Thus, the Tribunal rightly treated the assessment order under section 143 read with section 147 as wrong, invalid and bad in law.

REFERRED : Trustees of H. EH The Nizam's Supplemental Family Trust v. CIT (2000) 242 ITR 381 (SC) : 2000 TaxPub(DT) 1245 (SC); CIT, Bombay City I v. Narsee Nagsee & Company (1960) 40 ITR 307 (SC) : 1960 TaxPub(DT) 184 (SC); Smt. Nilofer Hameed & Anr. v. ITO & Anr. (1999) 235 ITR 161 (Ker) : 1999 TaxPub(DT) 814 (Ker-HC); Medapati Venkayamma v. ITO Ward-2 Amalapuram in (I.T.A. No. 252/Vizag/2013, dt. 18-8-2017) : 2017 TaxPub(DT) 4123 (Visakhapatnam-Trib)

FAVOUR : In assessee's favour

A.Y. : 2011-12



IN THE GUJARAT HIGH COURT

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