Assessment : Notice u/s.143(2) of Income-tax Act, 1961 : A.Y. 1997-98 : A valid notice u/s.143(2) can be issued only after the AO examines the return filed by the assessee.

[DIT v. Society for Worldwide Inter Bank Financial,
Telecommunications, 323 ITR 249 (Del.)]

In an appeal against the assessment order u/s. 143(3) of the
Income-tax Act, 1961 for the A.Y. 1997-98 the Tribunal found that the assessee
had filed the return of income on 27-3-2000, whereas the notice u/s.143(2) was
issued on 23-3-2000 i.e., before filing the return of income. The Tribunal
therefore held that the notice was invalid and hence the consequential
assessment order is invalid.

In appeal before the Delhi High Court, the Revenue contended
for the first time that the notice was issued on March 27, 2000 and not on March
23, 2000. The High Court upheld the decision of the Tribunal and held as under :

“(i) In the memorandum of appeal, the Revenue had stated
that the return was filed by the assessee on March 27, 2000 and the notice
u/s.143(2) was served upon the authorised representative of the assessee by
hand when the authorised representative of the assessee came and filed return
and that the date of the notice was mistakenly mentioned as March 23, 2000.

(ii) Even if it was true, the notice was served on the
authorised representative simultaneously on his filing the return, which
clearly indicated that the notice was ready even prior to the filing of the
return.

(iii) The provisions of S. 143(2) make it clear that the
notice could only be served after the Assessing Officer had examined the
return filed by the assessee. Thus, even if the statement of the Assessing
Officer is taken at face value, it would amount to gross violation of the
scheme of S. 143(2) of the Act.

(iv) That being the case, no interference with the impugned
order is called for.”