TMI Blog2015 (12) TMI 1767X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the notice was clearly issued beyond the statutory period of limitation. Since, the notice issued u/s. 143(2) is barred by limitation, no valid assessment could have been made on the assessee by Assessing Officer in the absence of valid notice u/s. 143(2) of the Act. Decided in favor of assessee. - ITA No. 887/PN/2013 - - - Dated:- 30-12-2015 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For the Assessee- Shri Sunil Pathak Shri Nikhil Pathak For the Revenue- Shri B.C. Malakar ORDER PER VIKAS AWASTHY, JM The appeal of the assessee is directed against the order of Commissioner of Income Tax (Appeals)-II, Pune dated 29-11-2013 for the assessment year 2008-09. 2. The assessee has impugned the findings of Commissioner of Income Tax (Appeals) by raising 7 grounds in appeal. However, the ld. AR of the assessee has stated at the Bar that he is only pressing ground Nos. 1, 2 and 3. The remaining grounds i.e. ground Nos. 4, 5 and 6 were not pressed. The ground No. 7 in the appeal is general in nature. In ground Nos. 1 and 2 the assessee has challenged the findings of Commissioner of Income Tax (Appeals) in rejecting the contentions of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) for the assessment year 2008-09 was 31-07-2008. Thus, the original return filed by the assessee was belated return u/s. 139(4) of the Act. Thereafter, the assessee filed revised return of income u/s. 139(5) of the Act on 11-05-2009. The Assessing Officer issued notice u/s. 143(2) on 18-08-2010 i.e. within a period of six months from the end of financial year in which the revised return was filed by the assessee. Since, the assessee had filed original return of income u/s. 139(4), no revised return could have been filed by the assessee. As per the provisions of section 139(5), revised return could be filed only in respect of original return filed u/s. 139(1) or return filed in pursuance to notice issued u/s. 142(1) of the Act. Further, as per the provisions of section 143(2) no notice u/s. 143(2) can be served on the assessee after the expiry of six months from the end of financial year in which return is furnished. In the case of assessee, since the revised return is invalid, the limitation for issuing notice u/s. 143(2) has to be counted from the date of original return of income filed u/s. 139(4) i.e. 12-12-2008. Thus, the limitation for issuing notice u/s. 143(2) in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ails of the land from the office of Sub-Registrar, Paud, Pune and computed the capital gains at ₹ 24,39,063/-. The Assessing Officer also noted that the assessee had sold open plot for ₹ 17,50,000/-. In the absence of any assistance from the assessee s side, the Assessing Officer was constrained to make best judgment assessment u/s. 144 of the Act. Even during the first appellate proceedings, the assessee failed to place on record any document to rebut the findings of the Assessing Officer. The ld. DR prayed for dismissing the appeal of the assessee. 6. The ld. AR refuting the submissions forwarded by the Departmental Representative submitted that the assessee had pointed out during the assessment proceedings vide letter dated 09-12-2010 regarding the defective notice issued u/s. 143(2) of the Act. The assessee had specifically pointed out that the notice is time barred. The said letter was delivered in the office of Assessing Officer and it bears the acknowledgment stamp. The Assessing Officer has admitted the fact in remand report dated 09-10-2012 that the letter dated 09-12-2010 bears office stamp. The ld. AR referred to the aforesaid letter at page 5 of the paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h claim: [Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003;] (ii) notwithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return: [Provided 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.]] 10. A perusal of sub-section (5) of section 139 would show that the provisions relating to filing of revised return are applicable only to the return filed u/s. 139(1) or return of income filed in pursuance to notice u/s. 142(1) of the Act. A bare reading of the provisions of sub-section (5) of section 139 makes it unambiguously clear that belated return filed under the provisions of section 139(4) cannot be revised. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return filed under sub-section (4) and the revised return filed under sub-section (5) of section 139. It would not be reasonable to construe the said clause as indirectly conferring a right which is not conferred directly by sub- section (5) of section 139. The High Court has drawn a distinction between a revised return and a rectified return. May be, there is a distinction. We are not concerned here with a rectified return but what was avowedly a revised return and which was in truth a new return. We find it equally difficult to agree with the rest of the reasoning of the High Court on this aspect. We are, therefore, of the opinion that no revised return can be filed under sub-section (5) of section 139 in a case where the return is filed under section 139(4). Once this is so the revised returns filed by the assessee for both the said assessment years were not valid in law and could not have been treated and acted upon as revised returns contemplated by sub- section (5) of section 139 - which means that section 153(1)(c) was not attracted in this case. Indeed, this is the view taken by all the High Courts as conceded by Mr. Ashok Sen - See O.P. Malhotra v. CIT [1981] 129 ITR 379 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of Commissioner of Income Tax (Appeals) has taken the shelter of the provisions u/s. 292BB of the Act. The Hon'ble Punjab and Haryana High Court in the case of CIT Vs. Cebon India Ltd. (supra) has held that absence of notice is not curable u/s. 292BB of the Act. The relevant extract of the judgment of Hon'ble High Court is as under: 2. The assessee filed return for the assessment year in question on 30th Nov., 1996, which was processed under s. 143(1)(a) on 30th May, 1997. Thereafter, assessment was framed under s. 144 of the Act, which was affirmed in appeal. The Tribunal, however, remanded the matter to CIT(A). The CIT(A), in the second round, allowed the appeal on the ground that there was no evidence to show that notice under s. 143(2) of the Act had been served on the assessee before 30th Nov., 1997 i.e. within one year of the filing of the return. It was accordingly held by the CIT(A) that the assessment was void. 3. The finding of the CIT(A) has been affirmed by the Tribunal. 4. Learned counsel for the Revenue submits that a notice has been duly dispatched to the assessee on 13th Nov., 1997 and the irregularity or defect in issuing notice was curab ..... 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