TMI Blog2012 (4) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... t requests for leave to add or amend or alter the grounds of appeal before the appeal is heard and disposed off. 3. The assessee has raised following grounds of appeal: 1 a) That on the facts circumstances of the case, reassessment proceedings initiated by the Ld. AO by issue of notice u/s 148 of the Act are illegal and bad in law because assessment of the return filed on 13.03.2008 was still pending at the time of issue of notice u/s 148 dated 04.02.2009 since notice u/s 143(2) of the Act could have been issued upto 31.03.2009. b) That notice u/s 148 of the Act is illegal and as such consequent assessment framed is illegal, bad in law and voidab- initio. 2. That without prejudice to the fact that alleged assessment framed by the Ld. AO without assumption of valid jurisdiction is illegal and void ab-initio since notice issue u/s 148 of the Act is illegal and bad in law even otherwise: a) That on the facts circumstances of the case, Ld. CIT(A), has grossly erred in confirming the addition of ₹ 11,31,004/- as made by the AO by applying 12% on contract receipts as against 8% declared by the assessee. Addition confirmed is illegal and bad in law. b.1) That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same may be admitted. 5. The Ld. DR, on the other hand, did not have any objection to the same. 6. We have heard the rival contentions and perused the facts of the case. The issue with regard to illegality of notice u/s 148 of the Act being a legal issue and in view of the decision of the Hon ble Supreme Court in the case of National Thermal Power Co. Ltd. vs. CIT (supra), the same is admitted. 7. The brief facts of the case, as stated by the Ld. counsel for the assessee are that the assessee is engaged in the business of Civil Construction Contracts. The assessee does not maintain any books of account. The income has been computed from TDS certificates by applying 8% on contract receipts as done in the past. The capital investment made in the venture was made by transfer through cheques drawn on Oriental Bank of Commerce and a loan of ₹ 4,00,000/- was taken. The return was revised by rectifying the omission and mistake on 13.03.2008 declaring income of ₹ 14.23 lacs by applying 8% on contract receipts of ₹ 1,74,87,525/-. The return was processed on 25.03.2008. Proceedings were initiated u/s 147 of the Act on 03.02.2009 and notice u/s 148 of the Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition of ₹ 15,97,347/- by computing difference between alleged expenses/investments with availability of cash i.e. on account of cash deposits of ₹ 9,13,060/-, investment in Naveen Trehan Autos loan ₹ 14.75 lacs, investment in plot ₹ 4,00,000/-, repayment of housing loan ₹ 96,000/-, repayment of car loan ₹ 5,75,763/-, fixed deposits with JCT Ltd. ₹ 8,00,000/- household expenses ₹ 5,00,000/-. Out of the same cash available was computed by the Ld. CIT(A) at ₹ 29,45,476/- and accordingly, the balance additions were confirmed at ₹ 15,97,347/- as against made by the AO at ₹ 41,93,209/-. 9. The Ld. counsel for the assessee, Mr. Surinder Mahajan, CA, first of all argued on the legal issue that the return of income was filed on 13.03.2008 which was processed under section 143(1) of the Act on 25.03.2008. The time available for issue of notice u/s 143(2) of the Act was upto 31.03.2009. The AO issued notice under section 148 of the Act on 04.02.2009. It was argued that notice u/s 148 of the Act cannot be issued when time available for 143(2) of the Act is available. Notice u/s 148 read with section 147 can be issued on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act 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. In the present case, notice u/s 143(2) can be issued upto 30.09.2008 and thereafter the notice u/s 148 can be issued and the AO issued notice on 04.02.2009 well after the limitation period as provided under section 143(2) of the Act expired. As regards the merits of the case, the ld. CIT(A) relied upon the order of the Assessing Officer. 12. We have heard the rival contentions and perused the facts of the case. As regards legal grounds of the assessee, there is no dispute to the fact that the return of the assessee was filed on 13.03.2008 and notice under section 148 was issued on 04.02.2009 for the assessment year 2007-08. Now the issue before us is whether notice u/s 148 of the Act could validly be issued and there was sufficient time to issue notice by the AO u/s 143(2) of the Act. Prior to substitution by the Finance Act, 2008 w.e.f. 01.04.2008, proviso to section 143(2)(ii), as amended by Finance Act, 2003 w.e.f. 01.06.2003 was that no notice under clause (ii) shall be served on the assessee after the expir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee may produce and such other evidence as the AO may require on specified points and after taking into account all relevant material which he has gathered, the AO shall, by an order in writing, make an assessment of the total income or loss of the assessee and determine the sum payable by him or refund of any amount due to him on the basis of such assessment. Therefore, both the assessments are different assessments and have different basis, as mentioned hereinabove. There is no dispute to the fact that the law applicable on the date of filing of return of income is applicable, as held by the Hon ble Supreme Court in the case of Commissioner of Income Tax vs. Onkar Saran And Sons, 195 ITR 1 (SC). It is also not a case of applicability of section 292BB in view of the decision of ITAT Delhi Bench (Special Bench), in the case of Kuber Tobacco Products (P) Ltd. vs. Dy. Commr. of Income-tax, Co. Circle 5(1), New Delhi, (2009) 117 ITD 273, in which it has been held that section 292BB of the Act, cannot be construed by the retrospective operation and it has to be applied prospectively. Consequently, upto 31.03.2008, the assessee is not precluded from taking any objection regarding in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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