TMI Blog2018 (11) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside and not annulled. Be that as it may, now the law declared in Hotel Blue Moon (2010 (2) TMI 1 - SUPREME COURT OF INDIA) puts it beyond a pale of doubt that the requirement of issuance of notice within prescribed time under Section 143(2) of the Act for the purpose of assessment in case of the AO repudiating the return filed by the assessee in response to the notice under Section 158BC is a mandatory requirement and omission to serve such a notice within time is not a curable irregularity of procedure, as assumed by the ITAT in its earlier order dated 28.04.2006. The order dated 12.10.2012 being squarely in consonance with the requirements of justice, and on the admitted fact situation that the notice under Section 143(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed at ₹ 52227000/- as against returned income of ₹ 20890802/-. The AO considered the activities carried out by the assessee as fees for technical service covered in section 9(1)(vii) of the Income Tax Act and imputed an profit rate of 25% on total receipts. The assessee filed objection against the draft assessment order before the Dispute Resolution Panel (DRP). The objections were with regard to assessment being time barred as well as on merits. The DRP rejected the objections and sustained the finding of the Assessing Officer. 4. Counsel for the appellant has contended that tribunal has committed serious error in holding that notice was not given u/s 143(2) in a prescribed manner. 5. In support of his contention, counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the time prescribed was only for service of the notice. As the notice mentioned in s. 4 of the Amending Act is linked with the time prescribed under the Act, the section becomes unworkable if the narrow meaning is given to the expression issued . On the other hand, if we give wider meaning to the word, the section would be consistent with the provisions of s. 34(1) of the Act. Moreover, the narrow meaning would introduce anomalies in the section: while the notice, assessment or re-assessment were saved, the intermediate state of service would be avoided. To put it in other words, if the proceedings were only at the stage of issue of notice, the notice could not be questioned, but if it was served, it could be questioned; though it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st as many as on two occasions and service of notice on 19th Oct., 2006, on the Authorized Representative of the Respondent-Assessee whom the Respondent- Assessee now disowns, in our considered view, is sufficient to draw an inference of deemed service of notice on the Respondent- Assessee and sufficient compliance of the requirement of Section 143(2) of the I.T. Act, 1961. On the aforesaid view that we have taken we are of the opinion that the High Court was not right in coming to the impugned conclusion in the facts of the instant matter. We accordingly, allow this appeal and set aside the order of the High Court. 6. Counsel for the appellant has further contended that in view of the above decisions, the circular which sought to be rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples on the applicability of case law, as explained by the Hon'ble Supreme Court in Saurashtra Kutch Stock Exchange Ltd. (supra), we have no hesitation in observing that in the demand of justice, only the principles in Hotel Blue Moon can be considered applicable to the present case. Moreover, in the present case, the proceedings had even otherwise not attained finality because of the pendency of the appeal against the order dated 22.05.2009. Viewed from any angle, the ITAT appears to have acted just and proper in modifying its earlier order standing at contradiction to the dictum of the Hon'ble Supreme Court. The order dated 12.10.2012 being squarely in consonance with the requirements of justice, and on the admitted fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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