TMI Blog2012 (9) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee 19-09-2008 is within time. Appeal decide in favour of revenue Income Tax on winning of lottery in Sikim – Whether Income Tax can be levied twice upon a same income, being income on account of winning of Sikkim Lottery, once under Sikim Income Tax Rules, 1948 and again under the Indian Income Tax Act, 1961 in the situation where Sikim is a state of India - Held that:- Since the assessee was not resident within the territories comprised in the of State of Sikkim, the provision of section 10(26AAA) was not applicable to him and income from winning of lottery in Sikkim was liable to tax under the provisions of Indian Income-tax Act, 1961. Following the decision of Bombay High Court in case of Nirmala Mehta (2004 (4) TMI 43). Issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is defective and after perusing all the documents found that the documents and information are correct and complete and thereafter on the very last month on which the issuance of notice under section 143(2) of the Income Tax Act, 1961 would have become time barred, issued the notice under section 143(2) along with 142(1) and initiated the proceedings afresh making whole procedure bad and void ab-initio. IV. FOR THAT the Commissioner of Income Tax (Appeals) XXXIII has failed to consider the relevant materials and judgement and decide the matter by taking into consideration irrelevant and / or extraneous materials. V. FOR THAT the appellant crave leave to add more grounds at the time of hearing, if necessary. 4. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation would expire on the expiry of 6 months after the end of the financial year in which the return of income has been filed. It was the submission that the said amendment to proviso of section 143(2)(ii) of the Act took place on 1-4-08 and such amendment would have no applicability to the assessee s case in so far as the return of income was filed on 2-8-07. It was the submission that this principle has been accepted by the Hon ble Jurisdictional Calcutta High Court in the case of Gangadhar Bera vs. ACIT reported in 267 ITR 422(Cal). It was the submission that as per the decision of the Hon ble Single Judge in the Writ Petition, which was against notice issued u/s. 143(2). In that case it was held that the date of filing of return, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) having been brought to effect w.e.f 1-4-08 and as the limitation for issuance of notice u/s. 143(2) was still available as on 1-4-08, the law as per the amendment of proviso to section 143(2) was liable to be applied. It was further submitted that the discussion made by the Hon ble Single Judge in the writ petition in the case of Gangadhar Bhera (refer to supra) cannot be treated as orbiter dicta. The issue before the Hon ble Jurisdictional High Court in the case of (refer to supra) was whether the notice was issued u/s. 143(2)(i) or (ii) which was decided against the assessee. The said decision has no applicability to the facts of the present case. It was the submission that in view of the amendment to proviso of section 143(2), the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemently supported the orders of the Assessing Officer and the learned Commissioner of Income-tax (Appeals). 10. We have considered the rival submissions. A perusal of the facts in the present case clearly shows that the assessee filed return of income on 2-8-07. Proviso to section 143(2)(ii) before 1/4/08 specifically reads that notice shall be issued within 12 months from the end of the financial year, in which the return of income is filed. If this proviso is applied, then the limitation for issuance of notice u/s. 143(2) in respect of return filed on 2-8-07 would expire on 30-8-08. During the pendency of the limitation for issuance of notice u/s. 143(2), the proviso to section 143(2)(ii) under an amendment by which the limitation for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we may mention here that the issue before the Hon ble Jurisdictional Calcutta High Court in the case of Gangadhar Bera (refer to supra) was that the notice issued u/s. 143(2) was bad in law and invalid. It did not mention clause of the said sub-section, namely, whether clause (i) or clause(ii). The issue before the Hon ble Jurisdictional High Court was not the issue of date from which the notice could be treated to have become time barred. The learned AR for the assessee drew our attention a few lines of the said judgment, which reads as ..In my view the lis is treated to be pending on and from the date of filing of returns in the event such returns are not accepted by the Assessing Officer and he decides to examine and hear. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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