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2016 (7) TMI 743 - AT - Income TaxRectification of mistake - validity of service of notice u/s.143(2) of the act and decide the said issue afresh after giving proper opportunity of being heard to the Assessee - Held that:- The date of filing of return in response to notice u/s.148 by the Assessee has been wrongly mentioned as 15.5.2008 whereas the correct date is 15.5.2007. This is the first apparent factual error in the order of the Tribunal. The second error is that the tribunal after noticing the time limit for service of notice u/s.143(2) of the Act for return of income filed in response to notice u/s.148 of the Act between the period 1.10.1991 to 30.9.2005 has wrongly applied that time limit to the case of the Assessee. Such time limit was not applicable to the case of the Assessee at all because the Assessee filed return of income in response to notice u/s.148 of the Act on 15.5.2007. Therefore the time limit laid down in Sec.143(2) of the Act as discussed would alone apply. The Tribunal has taken the date of filing of the return as 1.8.2005 which was the original return of income filed by the Assessee and applied the amendment to the provisions of Sec.148(2) which was applicable for return filed between the period 1.10.1991 to 30.9.2005. The date of filing of the return referred to in Sec.148(2) is the date of filing of the return in response to notice u/s.148 of the Act, which in the present case is 15.5.2007 and not 1.8.2005. This was a mistake apparent on the face of the record. The question that the Tribunal ought to have considered was therefore, whether the law as it prevailed when the return of income was filed i.e., as on 15.5.2007 which gives a time limit of 12 months from the end of the month in which the return of income was filed by the Assessee i.e., on or before 31.5.200 or the law that prevails when the AO conducts the Assessment proceedings when the AO issued notice u/s.143(2) of the Act on 5.9.2008 i.e., after the insertion of proviso to Sec.143(2)(ii) of the Act by the finance Act, 2008, w.e.f. 1.4.2008 whereby the time limit for service of notice was 6 months from the end of the financial year in which the return of income was filed by the Assessee i.e., on or before 30.9.2008. Therefore the order of the Tribunal suffers from a mistake apparent on the face of the record. The order dated 09.12.2015 is recalled in so far as it relates to validity of service of notice u/s 143(2) of the Act. The appeal is directed to be fixed for hearing to decide the said issue after notice to the parties.
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