Need clarification on Second return assesment

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Case:

One of my friends filed the Return for assesment year 2007 - 08  before due date under sec  139 (i) and it has been processed under sec 143(i) in Nov 2007. He used the same printed ITR form in which the assesment year has 2007 - 08 and filed the return for the assesment year 2008 -09 without changing the assesment year and that to before due date.  In the ack the assesment year has been changed from 2007-08 to 2008-09. The respective ITO has completed the assesment on the basis of the second return filed for the year again 2007 -08 instead of 2008- 09 and raised demand.

Questions :

1. Whether the second return filed as a belated return under sec 139(4)

2. whether the assessment done by the ITO on the second return without sending any notice under sec 148 for regularizing the same? is it a valid one or not?

3. Whether the demand has to be paid by the assesse or not ?

4. Is there any remedy in the hands of the assesse for not paying the tax?

Thanks & Regards,

Chakri

Replies (1)

Hi Friend,

1) Second return cannot be treated as Belated return even if it is considered as revised return for A/Y 2007-08, SINCE REVISED RETURN REPLACES THE ORIGINAL RETURN FROM THE DATE OF ORIGINAL RETURN.

2) Assessment u/s 147 in the absence of Notice is  VOID AB INITIO provided assesee has raised this issue before completion of assessment.

292BB. Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was—

          (a)  not served upon him; or

          (b)  not served upon him in time; or

          (c)  served upon him in an improper manner:

Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment.

3) If assessment is void then "Demand" is not required to be paid otherwise assesse should pay the demand and go for appeal to CIT. Assesse can also obtain stay u/s 220(6) "Not being considered as Assesee in default" before going in to appeal.

4) Similar to 3rd above

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