JUDGMENT
K.C. Agarwal, C.J.
1. The Income-tax Appellate Tribunal has referred the following question of law under Section 256(1) of the Income-tax Act, 1961, arising out of its order dated October 23, 1980, in respect of the assessment year 1977-78:
“Whether, on the facts and in the circumstances of the case, when the Income-tax Officer had no jurisdiction to issue notice under Section 148 and the same being superfluous whether the Appellate Tribunal was right in holding that the assessment made by the Income-tax Officer was not an assessment made under Section 143(3) on the basis of the return filed by the assessee on August 30, 1978, under Section 139(4) and whether the provisions of Section 292B were attracted ?”
2. The brief facts of the case are that the assessment of the assessee-firm was made up to the assessment year 1971-72 and, according to the Income-tax Officer, no returns were filed for the assessment years 1972-73 and 1973-74. The return for the year in dispute, i.e., 1977-78, was filed on August 30, 1978, declaring an income of Rs. 23,490. A notice under Section 148 was issued on March 31, 1979. Subsequently, the Income-tax Officer issued a notice under Section 143(2) of the Act and in the course of proceedings the documents which were not filed along with the return were filed after a notice was issued under Section 143(2) of the Act, Assessment was framed under Section 143(3)/148 of the Act. Against this assessment order, an appeal was preferred to the Appellate Assistant Commissioner of Income-tax where it was contended that the notice issued under Section 148 is invalid and, consequently, the assessment order passed by the Income-tax Officer is illegal. The Appellate Assistant Commissioner has held that the return of income was filed on August 30, 1978, under Section 139(4) of the Act and there was no necessity for the Income-tax Officer to issue the notice under Section 148 and since the assessee has not filed any return in compliance with the notice issued under Section 148, the assessment could have been framed under Section 144. It was observed that, because, subsequently, the notice under Section 143(2) of the Act was issued, the Income-tax Officer was legally competent to issue such a notice on the basis of the return filed and the assessment was accordingly completed under Section 143(3) of the Act and, therefore, the action of the Income-tax Officer was in accordance with law. The matter was challenged by the assessee before the Income-tax Appellate Tribunal with regard to the validity of the assessment order framed on the basis of the notice issued under Section 148. The Tribunal has observed that the Appellate Assistant Commissioner was not justified in recording the reasoning that the Income-tax Officer has not acted under Section 148 when the proceedings were initiated under Section 148. The Tribunal came to the conclusion that the order of assessment clearly mentioned that the assessment has been passed under Section 143(3) read with Section 148 and the words “section 148 cannot be considered superfluous and not protected under Section 292B”, the view of the Tribunal was that the provisions of Section 292B cannot be invoked to wash out the illegalities committed by the Income-tax Officer and since the proceedings were under Section 148, the assessment framed has to be quashed.
3. The submission of learned counsel for the Revenue is that the order of the Tribunal is not in accordance with law inasmuch as even if the notice under Section 148 was issued, the same stands superseded by another notice issued under Section 143(2) of the Act and the assessment was in fact framed under Section 143(3) of the Act in pursuance of the notice issued under Section 143(2) of the Act. No provisions of Section 148 could have been invoked when no return was submitted or there was escapement of assessment which are not the facts of the present case and, therefore, no notice under Section 148 could have been issued. The Income-tax Officer, after issuing the notice under Section 148, has issued another notice under Section 143(2) and that notice could have been issued when a return has been submitted under Section 139 of the Act. In fact, in the present case, the return was submitted under Section 139 and, therefore, the Income-tax Officer had jurisdiction to issue the notice under Section 143(2) of the Act. The notice which has been issued under Section 143(2) of the Act has resulted in the final assessment and simply because a notice was issued earlier under Section 148 for which the conditions precedent were not in existence, it cannot be deemed that the assessment has been framed under Section 148. Though the provisions of Section 292B cannot be invoked in the present case because it was not a case of mistake, defect or omission in a notice issued, it is a case where a notice was wrongly issued and subsequently the correct notice was issued. On issuing the correct notice subsequently, the effect of issue of the earlier notice is obliterated and the Appellate Assistant Commissioner was not right in coming to this conclusion inasmuch as, after issue of notice under Section 148, no return was submitted and the assessment was not framed under Section 144 on account of non-compliance with the notice issued under Section 148, It was on account of the issue of notice under Section 143(2) that the information/statement which was not submitted along with the return were subsequently submitted and, therefore, the assessment was framed under Section 143(3). Mere writing of Section 148 “will not escape the assessee of the liability” to pay tax in accordance with the return which was submitted by him. The view which has been taken by the Tribunal is not in accordance with law and the Tribunal has gone on technicalities which is not sustainable under law. In these circumstances, we are of the view that the Income-tax Appellate Tribunal was not justified in coming to the conclusion that the assessment was framed under Section 148 and was not framed under Section 143(3).
4. Accordingly, the reference is answered in favour of the Revenue and against the assessee. No order as to costs.