TMI Blog2017 (12) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 143(2) of the Act. Herein, though a contention is raised that the notice was dated prior to the limitation period, it was served only after the period of limitation, as admitted by the department before the Tribunal. Whether it is three days, three months or three years, if the notice is served after the limitation period, there could be no further proceedings taken. We are inclined to agree with the order of the Income Tax Appellate Tribunal and answer the question in favour of the assessee and against the Department. - I.T.A No.61 of 2012 - - - Dated:- 4-12-2017 - MR. K. VINOD CHANDRAN AND ASHOK MENON, JJ. For The Appellant : Sri.P.K.R.Menon,Sr.Counsel, GOI(Taxes), Sri.Jose Joseph, SC For The Respondent : Sri. T. O. Xa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that no notice under this subsection shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished. Going by the facts, the notice is served on the assessee beyond the time of limitation as spoken of in the proviso. 3. The learned Senior Counsel, Government of India (Taxes), would rely on Assistant CIT v. Hotel Blue Moon [2010] 321 ITR 362 (SC) and an unreported judgment of a Division Bench of this Court in I.T.A No.65 of 2015 dated 11th July of 2017 [Padinjarekara Agencies Pvt. Ltd. v. The Commissioner of Income Tax]. The submission is that though the proviso speaks of service of notice, the Hon'ble Supreme Court has understood it as issuance of notice in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiate an inquiry, then the notice under Section 143(2) is mandatory. 5. It is argued that the Hon'ble Supreme Court in Hotel Blue Moon had at many places in the decision spoken of the issuance of notice U/S 143(2)/142 of the Act and hence the proviso has to be understood as mandating only issuance of notice and not serving of notice. We are unable to accept the argument raised by the Department. Firstly there was no question raised before the Hon'ble Supreme Court as to whether the notice under Section 143(2) of the Act has to be served or issued; within the time as spoken of in the proviso. The Hon'ble Supreme Court was considering the issue as to whether notice under Section 143(2) of the Act is mandatory or not. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an opportunity of hearing. Incidentally the assessee had also approached the Additional Commissioner under Section 144A, to issue directions for the guidance of the Assessing Officer which was also done. The assessee hence had ample notice of the reopening proposed, which the assessee availed of by answering the case against it. It was in such a situation that the Division Bench held that the absence of notice under Section 143(2) of the Act raised subsequent to the assessment, was not sustainable. In K.J.Thomas (supra) though assessee denied receipt of notice, the assessee had filed a detailed reply and was heard before the re-assessment was completed. 7. In the present case, we do not see any such proceedings in which the assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Section 292BB reads as under: Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon 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 served upon him; or ( b) not served upon him in time; or ( c) served upon him in an improper manner. Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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