TaxTMI 
TaxTMI 
2014 (1) TMI 187
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....s of the case and in law, the Assessing Officer, on the basis of directions issued by DRP, erred on facts and in law in completing assessment at an income of Rs.33,97,361/- as against NIL income returned by the appellant. 2.1 That on the facts and circumstances of the case and in law, the income-tax demand raised by the Assessing Officer in notice under section 156 of the Act is arbitrary and unsustainable. 2.2 That the Assessing Officer and DRP erred on facts and in law in deeming the Indian Liaison Office of OIP Sensor Systems, NV (non- resident foreign company) as constituting Permanent Establishment in India under Article 5 (1) of Indo-Belgium Double Taxation Avoidance Agreement. 2.3 That the Assessing Officer and DRP erred on facts and in law in alleging that the appellant had, in addition to acting as a communication channel simpliciter, rendered services which resulted in creation of fixed place permanent establishment of the foreign company in India, without bringing any cogent material/evidence in support of such allegation. 2.4 That the Assessing Officer and DRP erred on facts and in law in drawing adverse inferences on the basis of information gathered ex- parte from....
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....ee had raised an objection before the Assessing Officer, vide letter dated 10.06.2009, that the notice u/s 143 (2) of the Act was received by the security guard of the assessee on 01.10.2008, beyond the prescribed time limit and that as such, this notice was invalid and void. The Assessing Officer, however, rejected this objection raised by the assessee, observing that 'service of notice by post' has nowhere been defined in the Act and as such, its meaning has to be derived from the General Clauses Act, 1897; that according to Section 27 of the General Clauses Act, service by post shall be deemed to be effective by properly addressing, pre-paying and posting by registered post, a letter containing the notice; that in the present case, the notice was properly addressed and sent by speed post, fixing the case for hearing on 21.10.2008 before the Assessing Officer; that the AR of the assessee attended the proceedings before the service of the notice on 21.10.2008, without bringing to the knowledge of the Assessing Officer that the notice u/s 143 (2) of the Act had been served on 01.10.2008; that in this manner, initially the assessee had raised no objection regarding the service of th....
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....ply to all such returns (irrespective of the assessment year to which the returns pertain) where notice under sub-section (2) of section 143 can still be issued on 1st April, 2008 under the pre-amended provision."; that in 'K.M. Sharma vs. Income Tax Officer', 254 ITR 772 (SC), it has been held, inter alia, that limitation is a law of procedure; that in 'C.B. Richards Ellis Mauritius Ltd. vs. Asstt. Director of Income-tax' 208 Taxman 323 (Del) (copies filed on record), it has been held that where the matter involved is of procedure which is in respect of time period in which assessment or re-assessment proceedings can be initiated, the time period/limitation period as prescribed in the Income-tax Act on the date of issue of notice would apply; that in 'Commissioner of Income-tax vs. Vardhaman Estate (P) Ltd.', 287 ITR 368 (Del), it was held that in a case involving service of notice u/s 143 (2) of the Act, the date of dispatch of notice is not the deemed date of service and that where there was no material to suggest that the notice sent by speed post was served on any earlier date than that contended by the assessee, the Tribunal had correctly held that the assessment was not vali....
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....iring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return;" 7. The Proviso to Section 143 (2) (ii), as it stood upto 01.04.2008 is as under:- "Provided that no notice under Clause (ii) shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished." 8. The above Proviso to Section 143 (2) (ii) was substituted by the Finance Act, 2008, w.e.f. 01.04.2008, as follows:- "Provided that no notice under Clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished." 9. The assessee contends that it is the latter proviso, i.e., that substituted by the Finance Act, 2008 w.e.f. 01.04.2008, which is the governing Proviso in the case at hand. The department, per contra, is of the view that it is the erstwhile Proviso which is applicable and not the amended one. 10. The stand of the assessee in this regard, as noted hereinabove, is that the amendment bringing in the new Proviso is a procedural amendment and it is, therefore, ....
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.... financial year in which the return is furnished. 47.2 Applicability. - This amendment has been made applicable with effect from 1st April, 2008. This means that the provision of new section 292BB shall apply in all proceedings which are pending on 1st April, 2008. 42.8 Similarly the amended provision of sub-section (2) of section 143 shall apply to all such returns (irrespective of the assessment year to which the returns pertain) where notice under sub-section (2) of section 143 can still be issued on 1st April 2008 under the pre-amended provision. 42.9 For example, the assessee "A" files his tax return on 31st March, 2007, the assessee "B" files his tax return on 15th April 2007 and the assessee "C files his tax return on 16th October, 2007. As on 1st April, 2008 notice under the pre-amended provision of sub-section (2) of section 143 could not have been issued in case of "A" and could have been issued in cases of "B" and "C". Hence, the new provision shall apply for returns filed by "B" and "C" but not for return filed by "A". In cases of returns filed by "B" and "C", the notice under sub-section (2) of section 143 can be served on the assessee on or before 31st September, 2....