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TMI Blog2013 (12) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) The CIT(A) erred in allowing the appeal of the assessee on the grounds that the notice u/s. 142(1) was issued beyond the prescribed time and in holding that assessment as not legally tenable and null and void. iv) The CIT(A) erred by not considering the amendment brought in section 142(1) w.e.f. 01.04.2006. v) Further, the CIT(A) erred by not taking into cognizance the proviso inserted after clause (i) of section 142(1) w.e.f. 01.04.1990. 3. Brief facts of the case are that on the basis of information received stating that the assessee had invested an amount of Rs. 22,82,245 in shares of Moschip Semi Conductor Technology Ltd., during the financial year 2004-05, the AO issued notice u/s. 142(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation with regard to the issuance of notice u/s 142(1) of the Act. In this context, the learned Departmental Representative relied upon a decision of Hon'ble Delhi High Court in case of DIT vs. KLM Royal Dutch Airlines (2007) 165 Taxman 34 (Del). 6. The learned authorised representative for the assessee, on the other hand, supported the order of the CIT (A). 7. We have considered submissions of the parties and perused the orders of the lower authorities as well as other material on record. 8. It appears from the materials on record as well as the orders passed by the CIT (A) though no specific ground was raised by the assessee before the CIT (A) challenging the validity of assessment due to notice u/s 142(1) of the Act having been iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice issued to him shall be deemed to have been served in accordance with the provisions of this subsection". On a plain reading of the provision contained u/s 142(1) of the Act along with the proviso introduced by Finance Act, 2006 with retrospective effect from 1-4-1990, it would be clear that the Assessing Officer is empowered under the Act to issue notice u/s 142(1) of the Act after the end of the relevant assessment year to a person within the time allowed under sub-section (1) of section 139 or before the end of the relevant assessment year and any such notice issued to the assessee shall be deemed to have been served in accordance with the provisions of section 142(1) of the Act. Thus, it is very much clear that the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 147 of the Act can only be invoked for assessment of escaped income and hence to be applicable in a particular situation. Therefore, the provision contained u/s 142(1) and section 147 are independent provisions and do not over-lap. The order of Income-tax Appellate Tribunal, Hyderabad Bench "A", where both the present members are parties, while considering identical issue in case of DIT vs. Smt. Kausari Begum in ITA No.532/Hyd/2010 dated 18-5-2012 held as under:- "3. We have heard the rival contentions and perused the material available on record. The only issue to be decided in this appeal is whether notice u/s 142(1) issued after end of one year from the relevant assessment year is barred by limitation or not. At this st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id amendment as explained in the Notes on clauses to the Finance Bill, 2006 is reproduced below:- "Clause 35 of the Bill seeks to amend section 142 of the Income-tax Act relating to inquiry before assessment. The existing provisions contained in clause (i) of subsection (1) of said section provide that where a person has not made a return of income within the time allowed under sub-section (1) of section 139, the AO may serve a notice on him requiring him to furnish the return of income. It is proposed to amend the said clause (i) so as to provide that where a person has not made a return of income before ht end of the relevant assessment year, the AO may serve a notice under this sub-section on him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he insertion of proviso to section 142(1) of the Act. We are therefore of the view that the CIT (A) was not correct in holding the issuance of notice u/s 142(1) to be ab initio void. Since the CIT (A) has decided the appeal on technical issue without going into merits of the case, we think it proper to set aside the matter to the file of the CIT (A) and direct him to dispose of the appeal on merits in accordance with law after affording a reasonable opportunity of being heard to the assessee." 10. The Hon'ble Delhi High Court in case of DIT vs. KLM Royal Dutch Airlines (supra) also expressed the same view while considering identical issue of issuance of notice u/s 142(1). Therefore, respectfully following the decisions of Income-tax Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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