KVRECPL – IRPINFRATECH (JV) Vs ACIT (ITAT Visakhapatnam)
ITAT Visakhapatnam held that assessment order passed under section 144 of the Income Tax Act without issuance of notice under section 143(2) is not sustainable and liable to be quashed since failure to issue notice u/s. 143(2) cannot be cured u/s. 292BB.
Facts- The assessee is a partnership firm engaged in the business of construction has not filed its return of income for the Asst. Year 2017-18. Based on the bank account statement, Form-26AS, AO treated an amount of Rs. 73,60,62,875/- as unaccounted income of the assessee-firm while estimating the profit percentage @ 8% on the entire income amounting to Rs. 5,88,85,030/-. Thus, AO determined the total income of the assessee at Rs. 5,88,85,030/- and passed the assessment order U/s. 144 of the Act, dated 18/12/2019.
CIT(A) in accordance with the provisions of section 251(1)(a) of the Act remitted the matter back to the file of the Ld. AO for fresh adjudication of the case. Being aggrieved, the present appeal is filed.
Conclusion- The coordinate Bench of ITAT, Rajkot in the case of Haresh J Rathod vs. ITO has held that once the assessee has filed the Return of Income, in response to notice, u/s 142(1) of the Act, (although it is late, as compare to the date mentioned in the notice u/s 142(1) of the Act), then it would be mandatory for the assessing officer, in order to acquire the jurisdiction, to make the assessment on the assessee, to issue the notice u/s 143(2) of the Act. Without issue of notice u/s 143(2) of the Act, the assessing officer does not get jurisdiction to make the assessment on the assessee.
