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[2008] 304 ITR 264 (MAD.) HIGH COURT OF MADRAS Commissioner of Income-tax v. K. M. Pachayappan P.D. DINAKARAN AND P. P. S. JANARTHANA RAJA JJ. TAX CASE (APPEAL) NO. 870 OF 2007 JULY 4, 2007 Section 147 of the Income-tax Act, 1961 - Income escaping assessment - General Issuance of notice under section 148 when a valid return under section 139(4) was pending, was invalid [A.Y. 1997-98]. For the assessment year 1997-98 return of income was filed under section 139(4) on March 15, 2000. Notice under section 143(2) for framing assessment under section 143(3) could have been issued up to March 31, 2000. The Assessing Officer issued notice under section 148 on March 15, 2000 when a valid return under section 139(4) was pending. Held that the return was filed and the same was pending which meant that the proceeding was still pending. In such a situation, the revenue could not have issued notice for the purpose of reopening under section 147. Thus, no action could be initiated under section 147, when there was a pendency of the return before the Assessing Officer. T. Ravi Kumar for the Appellant. JUDGMENT P. P. S. Janarthana Raja, J.-This appeal is filed under section 260A of the Income-tax Act, 1961, by the Revenue, against the order of the Income-tax Appellate Tribunal, "D" Bench, Chennai in I. T. A. No. 228/Mds/2002 dated October 28, 2005, raising the following substantial questions of law : "1. Whether, on the facts and circumstances of the case, the Tribunal was right in law in not considering Explanation 2 to section 147 which provides that the Assessing Officer can reopen the assessments even if the assessments have not been completed under section 143 and only intimation had been sent, if the conditions laid under section 147 are fulfilled ? 2. Whether, on the facts and circumstances of the case, the Tribunal is right in not considering that the addition of incentive bonus to the total income is proper or not in view of the decision of the Madras High Court reported in the case of CIT v. E. A. Rajendran reported in [1999] 235 ITR 514 in which it has been held that no deduction except what has been allowed under section 16 is admissible ?" The facts leading to the…

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