TMI Blog2015 (1) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 292BB. Therefore, the proceedings are held to be valid. The order of Ld CIT(A) on this is upheld. Decided against assessee. Issue of demand raised u/s.234D - Held that:- This issue requires re-examination by the Assessing Officer. As seen an intimation u/s.143(1), as noted in the assessment order, was issued on 06-05-2003 i.e., before 01-06-2003. The provisions u/s.234D were introduced effective from 01-06-2003 and it was already held by various High Courts that if the refund is issued after that date, interest under Section 234D can be levied, even for the Assessment Years prior to AY.2004-05. Therefore, the crucial issue to be examined is whether the refund was issued prior to 01-06-2003 or later. - Decided in favour of assessee for statistical purposes - I.T.A. No. 282/Hyd/2011 - - - Dated:- 16-1-2015 - Shri B. Ramakotaiah And Shri Saktijit Dey,JJ. For the Petitioner : Smt. Anita Sumanth, For the Respondent : Shri D. Sudhakar Rao, CIT ORDER Per B. Ramakotaiah, A. M. This is an appeal by assessee against the order of the Commissioner of Income Tax(Appeals)-V, Hyderabad dated 15-12-2010 for the Assessment Year 2002-03. The issues i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een issued only upto 30.9.2008 whereas the Assessing Officer issued it on 17.10.2008. The appellant placed reliance on the following ratios: 1. ACIT Vs Smt Jyoti Devi (2004) 84 TTJ 689 (Jd-ITAT) 2. ITO Vs Smt Sukhini P Modi (2008) 112 ITD 1 (Ahmd-ITAT) 3. AClT Vs Muthoot Leasing Finance Ltd (2008) 21 SOT 281 (Coch-ITAT) 4.3 I have considered carefully the facts and arguments. There is no doubt that the notice U/s 143(2) has to be issued within 12 months from the end of the month in which the return of income was furnished. Clearly, the notice issued on 17.10.2008 is barred by limitation. However, with effect from 01.4.2008, the Finance Act, 2008 has introduced Section 292BB, which is quoted as below: Section 29BB: Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is requiredtobeservedupon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was- (a) not serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice U/s143(2) as discussed earlier. Therefore, Section 292BB introduced w.e.f.01.4.2008 is clearly applicable to the case of the appellant. Accordingly, the first issue is decided against the appellant and in favour of the revenue. The Assessment proceedings are not vitiated by the issue of notice U/s 143(2) on 17.10.2008. 5. With reference to the issue of re-opening on the amendment subsequently brought out, Ld.CIT(A) noticed that Assessing Officer has communicated the reasons differently whereas he has recorded the reasons correctly. He has extracted the reasons in para 5.2 and analyzed the facts and dismissed the grounds on this issue. Coming to the merits u/s.115JB, assessee's objections were also considered and rejected by stating as under: 7.1 I have considered carefully the aforementioned arguments and facts and I find that the following retrospective amendment was introduced in Section 115JB. Section 115JB - Special provision for payment of tax by certain companies (1) Notwithstanding anything contained in any other provision of this Act, where in the case of an assessee, being a company, the income-tax, payable on the total income as computed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liabilities; or d) the amount by way of provision for losses of subsidiary companies; or e) the amount or amounts of dividends paid or proposed; or f) the amount or amounts of expenditure relatable to any income to which section 10 (other than the provisions contained in clause (38) thereof) or section 11 or section 12 apply; or g) the amount of depreciation, h) the amount of deferred tax and the provision therefor, i) the amount or amounts set aside as provision for diminution . in the value of any asset, if any amount referred to in clauses (a) to (i) is debited to the profit and loss account, and as reduced by,]] ................................................................................................................................ ............................................................................................................................ 7.2 A plaint reading of the above leaves no doubt that the addition made by the Assessing Officer is in order and there is no room for any ambiguity or discussion on the same . 6. Assessee is aggrieved and raised the following grounds: 1. Erred in confirming the order passed by the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer is not proper. 8. Ld.DR in reply, however, submitted that the letter written by assessee is not clear whether it was relating to the service of notice u/s.143(2) or service of notice u/s.148. Since assessee co-operated before the Assessing Officer, the objection raised by assessee does not survive. Ld.DR relied on the decision of the co-ordinate bench in the case of M/s.Navayuga Spatial Technology Pvt. Ltd., in ITA No.1557/Hyd/2010 dt.26-12-2011 for this proposition. 9. Before coming to the merits as contended in Ground No.2, it is necessary to deal with Ground No.1 on the issue of jurisdiction. As rightly pointed out by the Ld.CIT(A), the Assessing Officer did record reasons to believe and initiated proceedings much before the amendment to the Act was carried out subsequently. However, since assessee has asked for the reasons subsequently after a year, Assessing Officer instead of communicating the exact reasons as recorded by the Assessing Officer in the order sheet, communicated in his own way relying on the retrospective amendment. Consequently, assessee has objected to the re-opening before the Ld.CIT(A). Since Ld.CIT(A) clarified on the issue of exact noting in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2008. Prior to substitution, no notice there under may be served after the expiry of 12 months from the end of the month in which the return was furnished. That date was upto 30-06-2008. Consequent to substitution of proviso, period got extended upto 30-09-08 in this case. Thus, notice can be served upto the expiry of six months from the end of the financial year when the return was filed ie. upto 30-09-2008. Therefore as per the statutory provision, the notice could have been issued/ served on or before 30-09-2008. However, Assessing Officer has issued the notice dt. 01-10-2008,which was immediately served. Assessee has appeared on 17-10-2008. As the assessment proceedings are pending as on 01-04-2008, the provisions of section 292BB will apply. Only in the case where assessee has objected before the Assessing Officer, the provisions are not applicable. In this regard, Ld.Counsel refers to the following submissions made before the Assessing Officer to rely that assessee has objected to the notice. Para 2 of the letter addressed to Assessing Officer vide letter dt. 28-11-2008 is as under: 2. Our submission on jurisdiction: We wish to submit that the re-assessment proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured, on account of the assessee s action in ignoring the same and participating in the proceedings before the assessing officer. Learned counsel for the assessee has contended before us that the recently inserted provision of S.292BB, effective from 1st April, 2008, is applicable only from the assessment year 2008-09 only, and since the present appeal relates to assessment year 2005-06, the saving provision of that section does not come to the rescue of the Department. We are afraid, such a plea cannot be accepted, for the reason that the provision of S.292BB is only a procedural one, and as such, it applies to all the pending proceedings, irrespective of the assessment years, to which they relate, as held by the Punjab and Haryana High Court in the case of Om Sons International V/s. CIT(2011) 60 DTR (P H) 393, wherein it was held- .The provision has been made effective from 1st April, 2008 and therefore, shall apply to all pending proceedings. The CBDT issued Circular No.1 of 2009 dt 27th March, 2009 ((2009) 222 CTR (St) 69); (2009)310 ITR (ST) 42) giving explanatory notes on the provisions relating to direct taxes contained in Finance Act, 2008. Clause 42.7 (at p.86 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the applicability of section 292BB is not strictly restricted to issue of notice under section 143(2) but it is in respect of other notices relating to any provisions of the Act which include notice to initiate reassessment proceedings and other proceedings also. [Para 30] It is well-settled that while construing a deeming provision, full effect must be given to the statutory fiction. It should also be carried to its logical conclusion. To that end, it would be proper and even necessary to assume all those facts on which alone the fiction can operate. Therefore, where the statute under section 292BB deems service of notice, it will always include issue of notice, as service cannot be effected without issuance thereof. Thus, the argument of the assessee, that unless there exists issuance of notice, service thereof cannot be presumed or deemed and section 292BB would not be applicable, could not be accepted. [Para 32] No doubt, the issue of notice as well as service of notice is a procedural section, but when the same has time limitation, the obligation of the department to issue notice within a prescribed time becomes the right of the assessee to receive that notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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