TMI Blog2014 (2) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of section 292BB cannot extend to a case where the question of limitation is raised on admitted factual position in a given case – thus, the provisions of section 292BB of the Act will not be applicable to the present case - the assessment proceedings are invalid for the reason that the notice u/s. 143(2) of the Act had not been issued and served within the time limit prescribed by those provisions - The order of assessment is accordingly annulled – Decided in favour of Assessee. - ITA No.540/Bang/2012 - - - Dated:- 7-2-2014 - Shri N. V. Vasudevan And Shri Jason P. Boaz,JJ. For the Appellant : Shri H.N. Khincha, C.A. For the Respondent : Shri Bijoy Kumar Panda, Addl. CIT(DR) ORDER Per N.V. Vasudevan, Judicial Member This appeal by the assessee is against the order dated 05.01.2012 of the CIT(Appeals)-I, Bangalore relating to assessment year 2008-09. 2. There is a delay of about 17 days in filing the appeal by the Assessee. In the petition for condoning delay in filing the appeal, it has been submitted that one Mr.K.N.Shivkumar, who was handling the Assessee's tax matter underwent a surgery and was discharged from the hospital on 28.2.2012. He joined du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be allowed to an assessee, who does not furnish return of income on or before the due date specified u/s. 139(1) of the Act. Deduction u/s. 10A of the Act was therefore not allowed by the AO. The total income of the assessee was therefore computed by the AO under the normal provisions of the Act and not u/s. 115JB of the Act. Both in the original as well as the revised returns, the assessee had computed tax payable u/s. 115JB of the Act on book profits. 7. Aggrieved by the order of the AO, the assessee filed appeal before the CIT(Appeals). Before the CIT(A), the assessee raised a specific plea that notice u/s. 143(2) of the Act has not been issued within the time permitted under the proviso to section 143(2) of the Act viz., six months from the end of the financial year in which the return is furnished. In the present case, as we have already seen, the assessee filed original return of income on 01.10.2008 u/s. 139 of the Act. That was, however, not within the time specified u/s. 139(1) of the Act. The revised return filed by the assessee on 30.09.2009 was treated as non est by the AO as the original return which was sought to be revised had not been filed on or before the due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in its appeal do not require any consideration as the order of assessment has to be held to be invalid and annulled. 11. We have heard the submissions of the ld. DR and the ld. counsel for the assessee on the grounds No.3.1 3.2 referred to above. The ld. counsel for the assessee drew our attention to the decision of the Hon'ble Supreme Court judgment in the case of Kumar Jagadish Chandra Sinha through LRs v. CIT, 220 ITR 67 (SC) wherein the Hon'ble Supreme Court laid down that a revised return could be filed only if an assessee has furnished a return of income within the due date prescribed u/s. 139(1) of the Act. As such revised return is not valid in law and could not have been treated and acted upon as revised return contemplated u/s. 139(5) of the Act. It was therefore submitted by him that the original return of income filed by the assessee on 01.10.2008 ought to have been the return which should have been taken up for scrutiny by the AO. Therefore, the time limit for issuance of notice u/s. 143(2) of the Act should be reckoned from 01.10.2008. The time limit for issue of a notice u/s. 143(2) of the Act should thus be 30.09.2009. Notice u/s. 143(2) in the present case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of assessment is very clear on this aspect. The law is by now well settled that issuance of a notice u/s. 143(2) of the Act within the statutory time limit is mandatory and it is not a procedural requirement which is inconsequential. Reference may be made to the decision of the Hon'ble Delhi High Court in the case of Alpine Electronics Asia Pvt. Ltd. v. DGIT, 341 ITR 247 (Del), CIT v. Vardhana Estates Pvt. Ltd., 287 ITR 368 and ACIT v. Hotel Blumoon, 321 ITR 362 (SC). The contrary view expressed by the Hon'ble Madras High Court, in our view, cannot be followed as the decisions relied on by the ld. counsel for the assessee of Hon'ble Punjab Haryana High Court and Allahabad High court also took the view that non- issuance of notice u/s. 143(2) of the Act renders assessment order invalid. Admittedly, notice u/s. 143(2) of the Act not having been served on the assessee within the period contemplated under law, the order of assessment has to be held to be invalid and annulled. 15. The ld. DR has, however, placed reliance on the provisions of sections 292B 292BB of the Act. The aforesaid provisions read as follows:- "292B Return of income, etc., not to be invalid on certain gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y there was only one notice u/s. 143(2) dated 19.08.2010 issued and served on the assessee before completion of the assessment proceedings. The question is as to, whether the said notice was issued and served within the time contemplated u/s. 143(2) of the Act. The provisions of Sec.292BB lay down presumption in a given case. It cannot be equated to a conclusive proof. The presumption if rebuttable. The provisions of section 292BB cannot extend to a case where the question of limitation is raised on admitted factual position in a given case. We therefore hold that the provisions of section 292BB of the Act will not be applicable to the present case. 17. In light of the discussion as aforesaid, we hold that the assessment proceedings are invalid for the reason that the notice u/s. 143(2) of the Act had not been issued and served within the time limit prescribed by those provisions. The order of assessment is accordingly annulled. 18. In view of the above conclusion, the other issues raised by the assessee in the appeal are not taken up for consideration. 19. In the result, the appeal by the assessee is allowed. Pronounced in the open court on this 7th day of February, 2014. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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