03 Oct ITO (Exemption) vs Innovative Welfare and Educational Society (ITAT Delhi)
That the ‘return of income’ under section 148 can’t be treated as non-est even if filed beyond the time period specified in the notice under section 148. Because the AO has passed the order u/s 143(3) of the Act and not u/s 144 of the Act. The AO has proceeded with the return filed in response to the notice u/s 148 of the Act while framing the assessment under section 147 r.w.s. 143(3) and as such it can’t be said that the return filed belatedly under section 148 is invalid.
That the requirement to issue notice under Section 143(2) is mandatory and non-issuance of notice is not a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with. That the assessment framed under section 147 is bad in law as the notice u/s 143(2) was issued before the filling of return under section 148. That in the extant case the return under section was filed on 12-10-2012 and notice under section 143(2) was issued on 01-05-2012 and 09-08-2012. Therefore, no notice was issued under section 143(2) after filling of return under section 148.
Non-issuance of the notice u/s 143(2) is not a procedural irregularity and therefore the same cannot be cured u/s 292 BB of the Act. Consequently the assessment framed against the Assessee without issuing notice u/s 143(2) of the Act is unsustainable and liable to be quashed being void-abinitio