Haresh J Rathod Vs ITO (ITAT Rajkot)
Conclusion: Once assessee had filed the Return of Income, in response to notice, u/s 142(1), (although it was late), then it was mandatory for AO, in order to acquire the jurisdiction, to make the assessment on the assessee, to issue the notice u/s 143(2).
Held: In the instant case, the notice u/s 142(1) had been issued on 19/12/2017 requiring assessee to file return of income on or before 18/01/2018. However, assessee filed return of income beyond the time limit specified in notice u/s 142(1) of the Act on 03/06/2019. Therefore, the issue arose for consideration was whether it was necessary for AO to issue notice u/s 143(2) to acquire the Jurisdiction even though return filed by assessee was belated? It was held that once the assessee had filed the Return of Income, in response to notice, u/s 142(1), (although it is late), then it was mandatory for AO, in order to acquire the jurisdiction, to make the assessment on the assessee, to issue the notice u/s 143(2). Without issue of notice u/s 143(2), AO did not get jurisdiction to make the assessment on the assessee. The return of income was considered by AO while passing of order as well as while assessing total income & While making addition and determining the assessed income. AO neither discarded the return of income nor treated it as invalid return during the entire assessment proceedings. The return filed by assessee was belated return and the same was not discarded, as invalid, by AO, AO was bound to issue a notice u/s 143(2). Therefore, the omission on the part of AO to issue notice u/s 143(2) was not curable, and therefore, the requirement of notice u/s 143(2) could not be dispensed with. In the assessee’s case under consideration, AO did not issue the notice u/s 143(2), thereforr, the assessment order framed by AO was quashed.
