TMI Blog2017 (1) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... by annulled. In view of the aforesaid conclusion, the determination of total income in the reassessment order will have no effect. In the result, the appeal of the Assessee is allowed on the issue of order of assessment being held to be invalid for want of service of notice u/s.143(2) of the Act within the time required by law. - Decided in favour of assessee - ITA No. 578/Kol/2015 - - - Dated:- 19-10-2016 - Shri N.V.Vasudevan, JM and Dr.Arjun Lal Saini, AM For the Appellant : Shri Vigyaneshwar Nath Dutta, Advocate For the Respondent : Shri Pinaki Mukherjee, JCIT, Sr.DR ORDER This is an appeal by the assessee against the order dated 23.03.2015 of CIT(A)-11, Kolkata relating to A.Y.2005-06. This appeal was originall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Act. Therefore the date of filing of return of income in response to notice u/s.148 of the Act is 15.5.2007. 3.1. The requirements of service of notice u/s.143(2) of the Act is governed by the following provisions of the Income Tax Act, 1961 (Act). 3.2. The following amendments were made in section 143 by the Finance Act, 2002, namely :- (a) for sub-section (2), the following sub-section was substituted with effect from the 1st day of June, 2002, namely:- (2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,- (i) where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a period of 12 months from the end of the month in which the return of income was filed. The return of income in this case is deemed to have been filed on 15.5.2007 when the Assessee requested the AO to treat the return originally filed as a return filed in response to notice u/s.148 of the Act. The limitation of time would therefore be 31.5.2008 for service of notice u/s.143(2) of the Act on the Assessee. In the present case the notice u/s.143(2) was served on the Assessee on 5.9.2008. The AO was of the view that as per the amended provisions of Sec.143(2) by the Finance Act, 2008 referred to above, the limitation of time for service of notice u/s.143(2) would be 6 months from the end of the financial year in which the return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee i.e., on or before 31.5.2008 or the law that prevails when the AO conducts the Assessment proceedings when the AO issued notice u/s.143(2) of the Act on 5.9.2008 i.e., after the insertion of proviso to Sec.143(2)(ii) of the Act by the finance Act, 2008, w.e.f. 1.4.2008 whereby the time limit for service of notice was 6 months from the end of the financial year in which the return of income was filed by the Assessee i.e., on or before 30.9.2008. 6. In support of the contention that the law with regard to time limit for service of notice u/s.143(2) of the Act, as it prevails on the date of filing of the return of income by the Assessee should alone be applied, the learned counsel for the Assessee had placed reliance on the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished. The Hon ble Gauhati High Court held that the law as on the date when the return of income is filed by the Assessee i.e., as on 31.3.1992, will be applicable and therefore held that the notice issued on 27.10.1992 and served on the Assessee on that date was not barred by limitation as it was within the period of 12 months from the end of the month in which the return is furnished. The following were the relevant observations of the Court: On a reading of the Finance (No. 2) Act, 1991, or the aforesaid substituted proviso, there is nothing to show that Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted proviso introduced by the Finance (No. 2) Act, 1991, providing that no notice under Section 143(2) shall be served on the assessee after the expiry of 12 months from the end of the month in which the return is furnished came into force. It is only after the said amended proviso to Section 143(2) came into force that the petitioner's firm filed its return for the assessment year 1990-91 on March 31, 1992, and the liability of the petitioner for the assessment year 1990-91 on the basis of the said return would have become final if no notice had been issued by the Assessing Officer under Section 143(2) within the period of 12 months from March 31, 1992, i.e., before March 31, 1993. But well before March 31, 1993, the impugned notic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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