TMI Blog2003 (2) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... t had levied penalty of Rs. 18,125. It was further found that assessee had declared turn over of Rs. 5,93,53,524 on which net profit as per profit and loss account was Rs. 25,63,882 which was against decision of jurisdictional High Court in the case of Badri Prasad Bhagwandas Co. v. CIT [1995] 82 Taxman 109 in which it was held that if proper books were not maintained by a liquor contractor then profit should be assessed at 596 of sales and sales were to be estimated at 2 1/2 times of the licence fee. In this case, as the licence fee was Rs. 2,96,86,455 and 2 1/2 times thereof i.e., sales would work out to Rs. 7,42,16,137 and net profit @596 of such sales would be Rs. 37,10,807 as against Rs. 25,63,882 shown by the assessee. Ld. CIT was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to pages 2 3 which is copy of the notice under section 263 and reasons for the same. He submitted that these reasons are not correct. He contended that if Assessing Officer was not satisfied with the return, he could have easily issued notice under section 143(2) but once he chooses not to issue notice under section 143(2) then nothing can be done. He further contended that proviso to section 143(2) makes it very clear that notice under section 143(2) can be served on the assessee only within a period of 12 months from the end of the month in which return is furnished. As the return was filed on 30-11-1999, notice could have been issued till 30-11-2000 and notice cannot be issued by resorting to provisions of section 263. By no st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and Assessing Officer should have not ignored this fact which was on record. He contended that principle regarding application of net profit rate in case of liquor contractor was also available in the form of judgment from jurisdictional High Court in the case of Badri Prasad Bhagwandas Co. 4. In the rejoinder, the Ld. AR submitted that it is discretion of Assessing Officer to select a particular case for scrutiny or not as pointed out by him, lower rates of profit were also held to be justified by the Tribunal in other cases so Assessing Officer was merely following the decision of the Tribunal and in such a case action of the Assessing Officer could not be made subject to revision. In this regard, he relied on Russell Properties (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrutiny only within the period of one year from the end of month in which return has been filed as becomes clear from the language of proviso to section 143(2), which reads as under: - "Provided that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished:" Though law prescribing limitation is only procedural law but when a proceeding becomes time barred by the limitation then this would vest in a party with substantive right which accrues to such party because of the limitation. In this case, since no notice was issued under section 143(2) within the prescribed time limit a substantive right of not being put to scrutiny can be said to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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