TMI Blog2018 (6) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... solutely or not. Since these contentions have not been raised before the CIT(A) and raised for the first time before this forum, in order to examine these issues afresh on the basis of the record, we deem it fit to set aside the orders of the CIT(A) and restore the appeals to him to decide afresh - Grounds of Revenue as allowed for statistical purposes. - ITA No. 568/Hyd/16, 569/Hyd/16, 570/Hyd/16, 571/Hyd/16, 572/Hyd/16, 573/Hyd/16 And ITA No. 574/Hyd/16 - - - Dated:- 20-6-2018 - SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER For The Revenue : Shri B. Suresh Babu, DR For The Assessee : Shri A.V. Raghu Ram, AR ORDER PER BENCH : These batch of appeals are by the Revenue against the separate but commonly drafted orders of the Commissioner of Income Tax (Appeals)-7, Hyderabad. Revenue has filed the appeals with a delay of four days. The delay was explained by way of an affidavit by the AO that the records have been mixed up with other records of the office and could not be traced out immediately. The appeals were filed with a delay of four days, which was un-intentional. Considering the affidavit filed by the AO an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. Assessees herein again challenged the above order which was finally disposed-of by the order dt. 10-06-2014 with the following directions: .. it would be open for the respondent authorities to proceed in accordance with law and it would be open for the petitioner to participate in the assessment proceedings without prejudice to the rights and contentions of the parties. In the process if the assessment is complete, the order of assessment may be passed but effect thereof shall not be given without leave of this court. 4. M/s. Jawahar Associates conducted special audit and submitted their returns on 06-09-2014. In the report they have reported that assessees have not furnished the complete books of account, relevant details sought for and did not cooperate with them in conducting the special audit u/s. 142(2A). Special auditor reported that there were number of loans/advances and gifts and also credits in the bank accounts which noted/ verified by them in the absence of complete details/confirmations. 4.1. Thereafter, AO has given a show cause notice on 17-10-2014 enclosing a copy of the report submitted by the special auditor calling for explanation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(2A) on 11.03.2014. x) The assessee again challenged the order dated 11.03.2014, by way of writ. The Hon'ble High Court disposed off the petition vide order dated 10.06.2014. xi) Special Auditor, M/s. Jawahar Associaates submitted their report on 06.09.2014. xii) The Assessing Officer gave notice u/s 143(2) and 142(1) on 07.10.2014. xiii) The assessee filed re on 13.10.2014 to notice u/s 143(2) dated 07.10.2014 stating that proceedings are barred by time. xiv) The Assessing Officer gave show-cause notice on 17.10.2014 forwarding therewith a copy of report u/s 142(2A) of special Auditor, M/s. Jawahar Associates. xv) The assessee filed reply on 27.10.2014 and the assessment u/s 143(3) r.w.s. 147 was completed on 31.10.2014. 8. It is clear from the factual position as above that the notice u/s 143(2) was not issued within the prescribed time limit after the assessee filed return of income in response to notice u/s 148 (deemed to have been filed on the day, the assessee requested the Assessing Officer to treat the return filed on 02.01.2008 as return filed in response to notice u/s 148). This is confirmed by the Assessing Officer in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Blue Moon (supra). 8.3 In this context, it is to be seen whether the provisions of section 292 BB are applicable to the facts of the case. Section 292 BB reads as under :- 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 the 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 such assessment or reassessment. It is seen that the assessee has raised Officer vide letter dated 13.10.2014, regarding non issue of notice u/s. 143(2) within the time prescribed during the course of assessment proceedings. Accordingly, provisions of section 292BB are not applicable to the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Andhra Pradesh, therefore, selection of scrutiny by issuance of notice u/s. 143(2) should have been done within the time and since notices were not issued within the time, the orders of CIT(A) are correct. However, Revenue has filed a chart indicating that the notices were issued within the time. For the sake of record, the details placed on record in the case of Shri Syed Irfanuddin in ITA No. 568/Hyd/2016 for the AY. 2007-08 is reproduced hereunder: Sl. No Description AY. 2007-08 1 Date of filing of letter in response to Notice u/s. 148 stating that the return of income already filed earlier should be treated as filed in response to notice u/s. 148 29-12-2011 2 Due date for issue of notice u/s. 143(2) as per the provisions of Section 143(2)(ii) which read as 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 i.e., 12 months from 01-01-2012 to 31-122012. 31-12-2012 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon'ble H.C. order dtd. 10-6-2014 to Date of issue of Notice u/s. 143(2) on 7-10-2014 4 months 13 Total time taken for issue of notice u/s. 143(2) 6 months 9. Both the parties have referred to the interim orders of the Hon'ble High Court dt. 23-02-2012 and also orders of the Hon'ble High Court dt. 10-06-2014 to submit that the proceedings are stayed limitedly u/s. 142(2A), as per assessee and all the proceedings including proceedings u/s. 143 by the Revenue. 10. We have considered the rival contentions, orders of the authorities and documents placed on record. As can be seen from the above, none of these contentions have been placed before the Ld.CIT(A). Ld.CIT(A) has only gone by the issuance of notice probably on a remand report sent by AO. Revenue has not raised the contentions of stay granted by the Hon'ble High Court and period that has to be excluded before the Ld.CIT(A). Consequently, Ld.CIT(A) had no opportunity to examine this issue. It is necessary to examine the prayer made before the Hon'ble High Court in the writ petitions, the orders of the Hon'ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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