Sudhir Menon v. ACIT ( 2018) 67 ITR 86(SN) (Mum)(Trib),www.itatonline.org

S. 143(2): Assessment –Notice- Additional ground- Jurisdictional issue –Admitted – A notice u/s 143(2) issued by the AO before the assessee files a return of income has no meaning- If no fresh notice is issued after the assessee files a return, the AO has no jurisdiction to pass the reassessment order and the same has to be quashed [ S.147, 148 , 254(1)]

Tribunal admitted the additional ground on question of law and the facts were already on record . Facts relating to the additional ground are that the assessee filed his return of income on 31.07.2010 declaring total income at ₹46,76,95,780/- and this return was processed under section 143(1) of the Act on 21.03.2012. Thereafter, the case was reopened by issuing notice under section 148 of the Act dated 01.04.2013, which was served on assessee at 08.04.2013. The ACIT, Central Circle-45, Mumbai issued notice under section 143(2) of the Act dated 03.05.2013 requiring the assessee to attend his office on 13.05.2013. The assessee in a response to notice under section 148 of the Act dated 01.04.2013, which was served on assessee on 08.04.2013, filed a letter dated 23.05.2013 stating that return originally filed be treated as return filed in response to notice under section 148 of the Act. According to the learned Counsel no notice under section 143(2) of the Act was issued after the filing of return by assessee i.e. vide letter dated 22.05.2013 which was received in the office of the ACIT, Central Circle-45, Mumbai on 23.05.2013. It means that the return of income was filed on 23.05.2013 in response to notice under section 148 of the Act. The learned Counsel for the assessee now before us stated that when no notice under section 143(2) of the Act, which is a jurisdictional notice, is issued to the assessee in response to return filed under section 148 of the Act, the assessment framed is invalid and bad in law. The learned Counsel for the assessee relied on the decision of Hon’ble Bombay High Court in of ACIT vs. Geno Pharmaceuticals Ltd. (2013) 32 taxmann.com 162 (Bombay) & in CIT vs. Ms. Malvika Arun Somaiya (2010) 2 taxmann.com 144 (Bombay) and Hon’ble Delhi high Court in the case of DIT vs. Society for Worldwide Inter Bank Financial, Telecommunications (2010)323 ITR 249 (Delhi) and also Tribunal’s decision of Delhi Bench in ITAs No. 5163 & 5164/Del/2010, 5554/Del/2012 for AY 2004-5 & 2005-06 vide order dated 02.07.2018. When these facts were pointed to the learned CIT Departmental Representative, he only relied on the orders of the lower authorities and on this jurisdictional issue he could not controvert the arguments of the learned Counsel of the assessee. Allowing the appeal the Tribunal held that ; a  notice u/s 143(2) issued by the AO before the assessee files a return of income has no meaning,if no fresh notice is issued after the assessee files a return, the AO has no jurisdiction to pass the reassessment order and the same has to be quashed. ( ITA No. 1744/Mum/2016, dt. 03.10.2018)(AY. 2010-11)