Sri Vasanth Alur Rangaramaiah , Mysore V. The Income Tax Officer Ward-2(1), Mysore

ITA 1721/BANG/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4305 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 22-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H L SOUMYA ACHAR
• Keywords: Unexplained cash credit; Period of limitation; Retrospective amendment; Validity of assessment; Assessment record; Revised return; Reason to believe
• Section: 143(3); 147; 148; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC - B BENCH : BANGALORE BEFORE SHRI JASON P BOAZ , ACCOUNTANT MEMBER ITA NO. 1 7 21 /BANG/201 8 ASSESSMENT YEAR : 20 1 1 - 1 2 SHRI. VASANTH ALUR RANGARAMAIAH, #366, 1E CROSS, LIC COLONY, SRIRAMPURA II STAGE, MYSURU 570 023. PAN : AQQPR 1454 D VS. THE INCOME TAX OFFICER, WARD 2(1), MYSURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI. NARENDRA SHARMA, ADVOCATE REVENUE BY : SMT. H. L. SOUMYA ACHAR, ADDL. CIT DATE OF HEARING : 18 . 09 .201 8 DATE OF PRONOUNCEMENT : 31 . 10 .201 8 O R D E R PER JASON P BOAZ, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A), MYSURU DATED 29.12.2017 FOR ASSESSMENT YEAR 2011-12. 2. BRIEFLY STATED, THE FACTS OF THE CASE, RELEVANT FOR DISPOSAL OF THIS APPEAL, ARE AS UNDER: 2.1 THE ASSESSEE IS A PENSIONER, DERIVING INCOME FROM PENSION AND OTHER SOURCES. DURING THE YEAR UNDER CONSIDERATION, I.E., ON 12.08.2010, THE ASSESSEE SOLD 2 ACRES OF AGRICULTURAL LAND SITUATED AT KALALAWADI VILLAGE, JAYAPURA HOBLI, MYSURU FOR TOTAL CONSIDERATION OF RS.13,15,000/-. IN VIEW OF THE AFORESAID REASON AND ALSO DUE TO THE ITA NO. 1721/BANG/2018 PAGE 2 OF 14 FACT THAT THE ASSESSEE HAD NOT FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12, THE ASSESSING OFFICER (AO) INITIATED PROCEEDINGS U/S 147 OF THE INCOME TAX ACT, 1961 FOR ASSESSMENT YEAR 2011-12 AS HE HAD REASON TO BELIEVE THAT INCOME OF THE ASSESSEE ON ACCOUNT OF CAPITAL GAINS ARISING FROM SALE OF THE AFORESAID LAND AT MYSURU HAD ESCAPED ASSESSMENT. NOTICE U/S 148 OF THE ACT WAS ISSUED ON 04.12.2013 AND IN RESPONSE THERETO, THE ASSESSEE FILED THE RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 ON 26.03.2014 DECLARING A TOTAL INCOME OF RS.92,530/-. THE ASSESSMENT WAS CONCLUDED U/S 147 R.W.S. 143(3) OF THE ACT VIDE ORDER DATED 20.03.2015 WHEREIN THE ASSESSEES INCOME WAS DETERMINED AT RS.17,54,853/- IN VIEW OF, INTER ALIA, THE FOLLOWING ADDITIONS: (I) INCOME FROM LTCG ON SALE OF LAND RS.12,72,340/-. (II) UNEXPLAINED CASH CREDITS RS.3,40,000/-. 2.2 AGGRIEVED BY THE ORDER OF ASSESSMENT DATED 20.03.2015 FOR ASSESSMENT YEAR 2011-12, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A), MYSURU, WHICH WAS DISMISSED VIDE THE IMPUGNED ORDER DATED 29.12.2017. 3.0 THE ASSESSEE, BEING AGGRIEVED BY THE ORDERS OF THE ORDER OF THE CIT(A), MYSURU DATED 29.12.2017 HAS FILED THIS APPEAL BEFORE THE TRIBUNAL WHEREIN HE HAS RAISED THE FOLLOWING GROUNDS: 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT, ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF RE-ASSESSMENT IS BAD IN LAW AND VOID-AB-INITIO FOR WANT OF REQUITE JURISDICTION ESPECIALLY, SINCE THE NOTICE WAS ISSUED IN THE STATUS OF INDIVIDUAL AND THERE WAS NO INCOME ESCAPING ASSESSMENT TO ASSUME JURISDICTION U/S 148 OF THE ACT, WHICH DID NOT EXIST ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE AND CONSEQUENTLY, THE RE-ASSESSMENT REQUIRES TO BE CANCELLED. ITA NO. 1721/BANG/2018 PAGE 3 OF 14 2.1 THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE ISSUANCE OF NOTICE U/S.148 OF THE ACT IN THE STATUS OF 'INDIVIDUAL' AS AGAINST 'HUF' INSPITE OF THE FACT THAT THE AGRICULTURAL LANDS WAS ANCESTRAL PROPERTY OF THE APPELLANT RECEIVED UPON A PARTITION AMONGST THE APPELLANT AND HIS BROTHERS, WHO WERE THE CO-PARCENERS OF THE DIVIDED HUF AND HENCE, THE REOPENING OF THE ASSESSMENT IN THE STATUS OF 'INDIVIDUAL' IS UNJUSTIFIED AND UNWARRANTED AND THE SAME OUGHT TO HAVE BEEN ANNULLED. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE ASSESSMENT OF A SUM OF RS.12,72,340/- UNDER THE HEAD 'CAPITAL GAINS' IN AS MUCH AS THE PROPERTY SOLD WAS AGRICULTURAL PROPERTY SITUATED AT KALALAVADI VILLAGE OF JAYAPURA HOBLI, WHICH WAS MORE THAN 8 KMS. FROM THE MUNICIPAL LIMITS OF MYSORE CITY AND THEREFORE DOES NOT COME WITHIN THE PURVIEW OF SECTION 2[14][III] OF THE ACT AND CONSEQUENTLY, THE ASSESSMENT OF CAPITAL GAINS REQUIRES TO BE VACATED. 4. THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.3,40,000/- MADE AS UNEXPLAINED CASH CREDIT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 5. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON'BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S.234-A AND 234- B OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE AND THE LEVY DESERVES TO BE CANCELLED. 6. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 4.0 ADDITIONAL GROUNDS OF APPEAL 4.1.1 IN THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE FILED AN APPLICATION FOR ADMISSION OF THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL: ITA NO. 1721/BANG/2018 PAGE 4 OF 14 1. THE MANDATORY NOTICE UNDER SECTION 143 2J OF THE ACT DATED 27/01/2015 HAS BEEN SERVED ON THE APPELLANT BEYOND THE PERIOD OF LIMITATION I.E. BEYOND THE PERIOD OF 6 MONTHS AS PRESCRIBED IN THE PROVISO TO SECTION 143 [2] OF THE ACT, AND CONSEQUENTLY THE ORDER OF ASSESSMENT PASSED BY THE LEARNED ASSESSING OFFICER UNDER SECTION 147 R.W.S. 143 [3] OF THE ACT DATED 20/03/2015 REQUIRES TO BE CANCELLED AS VOID-AB-INTO, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. A VALID NOTICE U/S. 143 [2] IS SINE QUA NON FOR ASSUMPTION OF VALID JURISDICTION FOR ASSESSMENT UNDER THE ACT AND THE SAME HAS TO BE SERVED WITHIN THE TIME LIMIT PRESCRIBED UNDER THE PROVISO TO SECTION 143 [2] OF THE ACT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE APPELLANT CRAVES LEAVE OF THIS HON'BLE TRIBUNAL, TO ADD, ALTER, DELETE, AMEND OR SUBSTITUTE ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL AS MAY BE NECESSARY AT THE TIME OF HEARING. 4. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED FOR THE ADVANCEMENT OF SUBSTANTIAL CAUSE OF JUSTICE AND EQUITY. 4.2.1 THE LEARNED AR FOR THE ASSESSEE SUBMITTED THAT THE ADDITIONAL GROUNDS RAISED (SUPRA) ARE PURELY ON LEGAL ISSUES AND DO NOT INVOLVE INVESTIGATION OF ANY FACTS OTHER THAN THOSE ON RECORDS OF THE DEPARTMENT. IT IS SUBMITTED THAT THESE GROUNDS WERE NOT SPECIFICALLY URGED BEFORE THE LEARNED CIT(A) AND IN THE ORIGINAL GROUNDS BY OVERSIGHT. PER CONTRA, THE LEARNED DR FOR REVENUE CONTENDED THAT SINCE THESE ADDITIONAL GROUNDS WERE RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE TRIBUNAL, THE SAME MAY NOT BE ADMITTED. 4.2.2 I HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE RECORD. IN MY CONSIDERED VIEW, EVEN THOUGH RAISED BEFORE THE TRIBUNAL FOR THE FIRST TIME, SINCE THE ADDITIONAL GROUNDS RAISED ARE PURELY LEGAL IN NATURE AND GOES TO THE ROOT OF THE MATTER FOR ADJUDICATION OF THIS APPEAL, I, THEREFORE, IN THE INTEREST OF SUBSTANTIAL JUSTICE ITA NO. 1721/BANG/2018 PAGE 5 OF 14 ADMIT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE FOR CONSIDERATION AND ADJUDICATION, FOLLOWING THE RATIO OF THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF NTPC LTD., VS. CIT ( 229 ITR 383) (SC). THE SAME ARE ADJUDICATED HEREUNDER: 4.3.1 IN THE ADDITIONAL GROUNDS, THE ASSESSEE CONTENDS THAT THE NOTICE ISSUED U/S 143(2) OF THE ACT DATED 27.01.2015 HAS BEEN ISSUED AND SERVED ON THE ASSESSEE BEYOND THE PERIOD OF LIMITATION I.E., BEYOND THE PERIOD OF 6 MONTHS SPECIFIED/PRESCRIBED IN THE PROVISO TO SECTION 143(2)(II) OF THE ACT AND CONSEQUENTLY THE ORDER OF ASSESSMENT PASSED U/S 147 R.W.S. 143(3) OF THE ACT DATED 20.03.2015 IS VOID-AB-INITIO AND BAD IN LAW AND THEREFORE REQUIRES TO BE CANCELLED. IT IS SUBMITTED THAT A VALID NOTICE U/S 143(2) OF THE ACT BRING SINE-QUA-NON FOR ASSUMPTION OF JURISDICTION, THE NOTICE U/S 143(2) OF THE ACT OUGHT TO HAVE SERVED WITHIN THE TIME LIMIT SPECIFIED IN THE PROVISO TO SECTION 143(2)(II) OF THE ACT AND SINCE THE SAME HAS NOT BEEN ADHERED TO BY THE AO, THE IMPUGNED ORDER OF ASSESSMENT DATED 20.03.2015 FOR ASSESSMENT YEAR 2011-12 IS LIABLE TO BE QUASHED AS IT IS PASSED WITHOUT VALID JURISDICTION. 4.3.2 THE LEARNED AR FOR THE ASSESSEE WAS HEARD IN SUPPORT OF THE ADDITIONAL GROUNDS RAISED (SUPRA). THE ASSESSEE HAS FILED A PAPER BOOK (PAGES 1 TO 53). THE FACTS AS REGARDS THE LEGAL ISSUE RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUNDS AS EMERGE FROM THE RECORD ARE THAT THE NOTICE U/S 148 OF THE ACT FOR INITIATION OF RE-ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2011-12 WAS ISSUED BY THE AO TO THE ASSESSEE ON 19.11.2013 (COPY PLACED AT PAGE 1 OF PAPER BOOK). IN RESPONSE TO THE AFORESAID NOTICE, ADMITTEDLY, THE ASSESSEE FILED A RETURN OF INCOME ON 26.03.2014 DECLARING INCOME OF RS.92,530/-. A NOTICE U/S 143(2) OF THE ACT DATED 27.01.2015 WAS ISSUED TO THE ASSESSEE FIXING THE HEARING ON 03.02.2015 (COPY PLACED AT PAGE OF PAPER BOOK). ACCORDING TO THE LEARNED AR, AS PER THE PROVISO TO SECTION 143(2)(II) OF THE ACT THE NOTICE THEREUNDER HAD TO BE NECESSARILY ISSUED TO THE ASSESSEE WITHIN 6 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN OF INCOME WAS FILED. IT IS SUBMITTED ITA NO. 1721/BANG/2018 PAGE 6 OF 14 THAT FOR THE YEAR UNDER CONSIDERATION; VIZ., ASSESSMENT YEAR 2011-12, SINCE THE ASSESSEE HAS ADMITTEDLY FILED THE RETURN OF INCOME ON 26.03.2014, THE MANDATORY TIME LIMIT FOR THE AO TO HAVE ISSUED THE NOTICE U/S 143(2) OF THE ACT WAS 30.09.2014 I.E., 6 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IN QUESTION WAS FILED. HOWEVER SINCE THE NOTICE U/S 143(2) OF THE ACT IN THE CASE ON HAND FOR ASSESSMENT YEAR 2011-12 WAS ISSUED ONLY ON 27.01.2015, WHICH IS BEYOND THE PERIOD OF LIMITATION AS PRESCRIBED U/S 143(2) OF THE ACT, THE ORDER OF ASSESSMENT IS TO BE CANCELLED. 4.4 THE LEARNED DR FOR REVENUE SUBMITTED THAT THE DELAY IN ISSUE OF NOTICE U/S 143(2) OF THE ACT IS CURABLE IN VIEW OF THE PROVISIONS OF SECTION 292BB OF THE ACT AND WOULD NOT RENDER THE ASSESSMENT NULL AND VOID. 4.5 IN THE REJOINDER THERETO, THE LEARNED AR RELIED ON THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ACIT VS. ASHED PROPERTIES AND INVESTMENTS (P) LTD., IN ITA NO. 1302/BANG/2012 AND CO NO. 66/BANG/2013 DATED 30.07.2015; TO SUBMIT THAT IN THIS DECISION THE CO-ORDINATE BENCH ON SIMILAR LEGAL ISSUE HAD CONSIDERED THE APPLICABILITY OF THE PROVISIONS OF SECTION 292BB OF THE ACT AND HELD THAT THE SAME IS NOT APPLICABLE IF THE SAID NOTICE U/S 143(2) IS NOT ISSUED WITHIN THE PERIOD OF 6 MONTHS SPECIFIED IN THE PROVISO TO SECTION 143(2)(II) OF THE ACT. RELIANCE WAS ALSO PLACED ON THE DECISIONS OF HONBLE APEX COURT IN ACIT VS. HOTEL BLUEMOON (321 ITR 362) (SC) AND HONBLE DELHI HIGH COURT IN ALPINE ELECTRONICS ASIA P. LTD., (341 ITR 247). 4.6.1 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD; INCLUDING THE JUDICIAL PRONOUNCEMENTS CITED. THE ADMITTED FACTUAL POSITION IN THE CASE ON HAND FOR ASSESSMENT YEAR 2011-12 IS THAT WHILE THE ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12, ON 26.03.2014 IN RESPONSE TO NOTICE U/S 148 OF THE ACT, THE NOTICE U/S 143(2) OF THE ACT DATED 27.01.2015 WAS ITA NO. 1721/BANG/2018 PAGE 7 OF 14 ADMITTEDLY SERVED BEYOND THE MANDATED/SPECIFIED PERIOD OF 6 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN OF INCOME WAS FILED BY THE ASSESSEE; AS LAID DOWN IN THE PROVISO TO SECTION 143(2)(II) OF THE ACT. THE AFORESAID FACTUAL AND LEGAL POSITION IS NOT DISPUTED BY REVENUE. IT IS SETTLED THAT ISSUE OF NOTICE U/S 143(2) OF THE ACT WITHIN THE STATUTORY TIME LIMIT SPECIFIED BY THE PROVISO TO SECTION 143(2)(II) OF THE ACT IS MANDATORY. 4.6.2 I FIND THAT IN SIMILAR FACTUAL AND LEGAL CIRCUMSTANCES, AS IN THE CASE ON HAND, A CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ACIT VS. ASHED PROPERTIES AND INVESTMENTS (P) LTD., IN ITA NO. 1302/BANG/2012 AND C.O. NO. 66/BANG/2013 DATED 30.07.2015, ANNULLED THE ORDER OF ASSESSMENT FOR NON-ISSUE OF NOTICE U/S 143(2) OF THE ACT WITHIN THE MANDATORY PERIOD SPECIFIED U/S 143(2)(II) OF THE ACT AS ISSUE AND SERVICE OF NOTICE U/S 143(2) IS ALSO MANDATORY FOR VALIDITY OF ASSESSMENTS FRAMED U/S 147 OF THE ACT. THE APPLICABILITY OF THE PROVISIONS OF SECTION 292BB OF THE ACT WAS ALSO CONSIDERED BY THE CO-ORDINATE BENCH IN ITS ORDER (SUPRA) WHEREIN IT WAS HELD THAT IF THE SAID NOTICE U/S 143(2) OF THE ACT HAS NOT BEEN SERVED WITHIN THE TIME LIMITS PRESCRIBED, SECTION 292BB OF THE ACT WOULD NOT COME TO THE RESCUE OF REVENUE. IN THIS CONTEXT, AT PARAS 9 TO 16 OF ITS ORDER, THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ASHED PROPERTIES AND INVESTMENTS (P) LTD., (SUPRA) HAS HELD AS UNDER: 9. WE HAVE HEARD THE LD. COUNSEL FOR THE ASSESSEE AND THE LD. DR ON THE ISSUE OF NON- ISSUE/SERVICE OF NOTICE U/S. 143(2) WITHIN THE TIME REQUIRED UNDER THOSE PROVISIONS AS RAISED BY THE ASSESSEE IN ITS CROSS-OBJECTION. THE ASSESSMENT RECORDS WERE CALLED FOR WITH A VIEW TO ASCERTAIN THE FACTUAL DETAILS. FROM A PERUSAL OF THE SAID RECORDS, THE FACTS THAT EMERGE ARE THAT; THE DATE OF FILING OF RETURN OF INCOME IN RESPONSE TO NOTICE U/S. 148 OF THE ACT WAS 23.8.2010. IN TERMS OF PROVISO TO SECTION 143(2)(II), NOTICE U/S.143(2) OF THE ACT OUGHT TO BE ISSUED AND SERVED ON THE ASSESSEE WITHIN A PERIOD OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. THE END OF FINANCIAL YEAR IN WHICH RETURN OF INCOME IS FURNISHED IN THIS CASE IS 31.3.2011. IN TERMS OF PROVISO TO SECTION 143(2)(II), THE SIX MONTHS PERIOD FROM THE END OF FINANCIAL YEAR WOULD END ON 30.9.2011. A PERUSAL OF ASSESSMENT RECORDS REVEALS THAT FIRST NOTICE U/S. 143(2)(II) PROVISO, RATHER THE ONLY NOTICE, WAS ISSUED BY THE AO ONLY ON 13.10.2011, WHICH IS WELL BEYOND THE PERIOD OF LIMITATION PRESCRIBED FOR SERVICE OF NOTICE UNDER PROVISO TO SEC. 143(2)(II). ITA NO. 1721/BANG/2018 PAGE 8 OF 14 10. IT IS THUS CLEAR FROM PERUSAL OF ASSESSMENT RECORDS, THAT NO NOTICE U/S. 143(2) WAS ISSUED WITHIN THE PERIOD OF LIMITATION CONTEMPLATED UNDER PROVISO TO SEC. 143(2)(II). IT IS, HOWEVER, CLEAR FROM THE RECORD THAT ASSESSEE WAS REPRESENTED BY A CA AND HE HAD PARTICIPATED IN THE PROCEEDINGS THROUGHOUT. 11. ON THE FACTUAL DETAILS AS NARRATED ABOVE, THE LD. DR RELIED ON THE PROVISIONS OF SECTION 292BB OF THE ACT AND SUBMITTED THAT NON-ISSUE OF NOTICE U/S. 143(2) WITHIN THE TIME SPECIFIED UNDER THE PROVISO TO SEC. 143(2)(II) WILL NOT RENDER THE ORDER OF REASSESSMENT NULL AND VOID. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE DECISION OF THIS TRIBUNAL RENDERED IN THE CASE OF M/S. AMITHI SOFTWARE TECHNOLOGIES PVT. LTD. V. ITO, ITA NO.540/BANG/2012 FOR AY 2008-09, ORDER DATED 7.2.2014. IN THE AFORESAID DECISION, THE FACTUAL POSITION WAS THAT RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 1.10.2008 FOR AY 2008-09, BEYOND THE PERIOD PRESCRIBED U/S. 139(1) OF THE ACT AND INTIMATION U/S. 143(1) WAS ISSUED BY THE AO ON 27.8.2009. THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 30.9.2009. THIS RETURN WAS TREATED AS NON EST BY THE AO AND A NOTICE U/S. 143(2) WAS ISSUED ON 19.8.2010 WITH REFERENCE TO ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE ON 1.10.2008. THE QUESTION BEFORE THE TRIBUNAL WAS AS TO, WHETHER ASSESSMENT PROCEEDINGS ARE BAD IN LAW FOR WANT OF ISSUE OF NOTICE U/S. 143(2) WITHIN THE PERIOD MENTIONED UNDER THE PROVISO TO SEC. 143(2)(II) OF THE ACT. THE TRIBUNAL DEALT WITH THE VALIDITY OF NOTICE ISSUED BEYOND THE PERIOD OF LIMITATION SPECIFIED UNDER PROVISO TO SEC. 143(2)(II) AND THE EFFECT OF PROVISIONS OF SECTION 292BB OF THE ACT, AND HELD AS FOLLOWS:- '14. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. THE ADMITTED FACTUAL POSITION IS THAT THE NOTICE U/S. 143(2) OF THE ACT DATED 09.08.2010 WAS ADMITTEDLY BEYOND THE PERIOD OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN OF INCOME WAS FILED BY THE ASSESSEE, AS LAID DOWN IN PROVISO TO SECTION 143(2)(II) OF THE ACT. IT IS ALSO NOT IN DISPUTE THAT THIS IS THE ONLY 143(2) NOTICE ISSUED BY THE AO. THE ORDER OF ASSESSMENT IS VERY CLEAR ON THIS ASPECT. THE LAW IS BY NOW WELL SETTLED THAT ISSUANCE OF A NOTICE U/S. 143(2) OF THE ACT WITHIN THE STATUTORY TIME LIMIT IS MANDATORY AND IT IS NOT A PROCEDURAL REQUIREMENT WHICH IS INCONSEQUENTIAL. REFERENCE MAY BE MADE TO THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF ALPINE ELECTRONICS ASIA PVT. LTD. V. DGIT, 341 ITR 247 (DEL), CIT V. VARDHANA ESTATES PVT. LTD., 287 ITR 368 AND ACIT V. HOTEL BLUMOON, 321 ITR 362 (SC). THE CONTRARY VIEW EXPRESSED BY THE HON'BLE MADRAS HIGH COURT, IN OUR VIEW, CANNOT BE FOLLOWED AS THE DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE OF HON'BLE PUNJAB & HARYANA HIGH COURT AND ALLAHABAD HIGH COURT ALSO TOOK THE VIEW THAT NON-ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT RENDERS ASSESSMENT ORDER INVALID. ADMITTEDLY, NOTICE U/S. 143(2) OF THE ACT NOT HAVING BEEN SERVED ON THE ASSESSEE WITHIN THE PERIOD CONTEMPLATED UNDER LAW, THE ORDER OF ASSESSMENT HAS TO BE HELD TO BE INVALID AND ANNULLED. 15. THE LD. DR HAS, HOWEVER, PLACED RELIANCE ON THE PROVISIONS OF SECTIONS 292B & 292BB OF THE ACT. THE AFORESAID PROVISIONS READ AS FOLLOWS:- '292B RETURN OF INCOME, ETC., NOT TO BE INVALID ON CERTAIN GROUNDS. ITA NO. 1721/BANG/2018 PAGE 9 OF 14 NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDINGS, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVISIONS OF THIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT. '292BBNOTICE DEEMED TO BE VALID IN CERTAIN CIRCUMSTANCES. 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 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 SUCH ASSESSMENT OR REASSESSMENT.' 16. AS FAR AS SECTION 292B IS CONCERNED, WE DO NOT THINK THAT THE NOTICE ISSUED BY THE AO U/S. 143(2) OF THE ACT IN THE PRESENT CASE WILL FALL WITHIN ANY MISTAKE, DEFECT OR OMISSION WHICH IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT. THE REQUIREMENT OF GIVING OF NOTICE BECAUSE COMPLETION OF THE ASSESSMENT PROCEEDINGS CANNOT BE DISPENSED WITH BY TAKING RECOURSE TO THE PROVISIONS OF SEC.292B OF THE ACT. AS FAR AS PROVISIONS OF SECTION 292BB IS CONCERNED, AS LAID DOWN IN THE DECISIONS OF THE ALLAHABAD HIGH COURT IN THE CASE OF MANISH PRAKASH GUPTA (SUPRA) & PARIKALPANA ESTATE DEVELOPMENT (P) LTD. (SUPRA) AND HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CEBONG INDIA LTD. (SUPRA), PROVISIONS OF SECTION 292BB CANNOT BE APPLIED IN A CASE WHERE ADMITTEDLY NO NOTICE U/S. 143(2) HAD BEEN ISSUED WITHIN THE TIME LIMIT PRESCRIBED IN LAW. WE MAY ALSO CLARIFY THAT THE DISPUTE IN THE PRESENT CASE IS NOT WITH REGARD TO ISSUE AND SERVICE OF NOTICE U/S. 143(2) OF THE ACT, AS ADMITTEDLY THERE WAS ONLY ONE NOTICE U/S. 143(2) DATED 19.08.2010 ISSUED AND SERVED ON THE ASSESSEE BEFORE COMPLETION OF THE ASSESSMENT PROCEEDINGS. THE QUESTION IS AS TO, WHETHER THE SAID NOTICE WAS ISSUED AND SERVED WITHIN THE TIME CONTEMPLATED U/S. 143(2) OF THE ACT. THE PROVISIONS OF SEC.292BB LAY DOWN PRESUMPTION IN A GIVEN CASE. IT CANNOT BE EQUATED TO A CONCLUSIVE PROOF. THE PRESUMPTION IF REBUTTABLE. THE PROVISIONS OF SECTION 292BB CANNOT EXTEND TO A CASE WHERE THE QUESTION OF LIMITATION IS RAISED ON ADMITTED FACTUAL POSITION IN A GIVEN CASE. WE THEREFORE HOLD THAT THE PROVISIONS OF SECTION 292BB OF THE ACT WILL NOT BE APPLICABLE TO THE PRESENT CASE. ITA NO. 1721/BANG/2018 PAGE 10 OF 14 17. IN LIGHT OF THE DISCUSSION AS AFORESAID, WE HOLD THAT THE ASSESSMENT PROCEEDINGS ARE INVALID FOR THE REASON THAT THE NOTICE U/S. 143(2) OF THE ACT HAD NOT BEEN ISSUED AND SERVED WITHIN THE TIME LIMIT PRESCRIBED BY THOSE PROVISIONS. THE ORDER OF ASSESSMENT IS ACCORDINGLY ANNULLED.' (EMPHASIS SUPPLIED) 12. THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED BEFORE US THAT EVEN BEFORE COMPLETING THE PROCEEDINGS U/S. 147, PROVISIONS OF SECTION 143(2) ARE APPLICABLE AND IN THIS REGARD PLACED RELIANCE ON THE DECISION OF THIS TRIBUNAL IN THE CASE OF C. RAMAIAH REDDY V. DCIT, ITA NO.121/BANG/2011 FOR AY 2005-06, ORDER DATED 27.1.2012 AND H. GOUTHAM CHAND V. ADDL. CIT, 8 ITR (TRIB) 269. 13. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. FROM THE NARRATION OF THE FACTUAL DETAILS AS GIVEN ABOVE, IT IS CLEAR THAT THE ONLY NOTICE ISSUED U/S. 143(2) WAS DATED 13.10.2011 AND THE SAME WAS BEYOND THE PERIOD CONTEMPLATED UNDER PROVISO TO SEC. 143(2)(II) OF THE ACT. TWO QUESTIONS ARISE FOR OUR CONSIDERATION; (I) WHETHER NOTICE U/S. 143(2) OF THE ACT IS MANDATORY BEFORE COMPLETION OF PROCEEDINGS U/S. 147 OF THE ACT? (II) WHETHER PROVISIONS OF SECTION 292BB OF THE ACT WILL COME TO THE RESCUE OF THE REVENUE SO AS NOT TO RENDER THE ORDER OF ASSESSMENT U/S. 147 NULL AND VOID? 14. AS FAR AS FIRST QUESTION IS CONCERNED, IN THE CASE OF C. RAMAIAH REDDY (SUPRA), THIS TRIBUNAL HAS CONSIDERED THE NON-ISSUE OF NOTICE U/S. 143(2) OF THE ACT WITHIN THE PERIOD OF LIMITATION IN RESPONSE TO NOTICE U/S. 148 OF THE ACT AS FATAL AND HAD ANNULLED THE ASSESSMENT U/S. 147 OF THE ACT. SIMILAR VIEW HAS ALSO BEEN TAKEN IN THE CASE OF H. GOUTHAM CHAND (SUPRA). THE SPECIAL BENCH OF THE DELHI TRIBUNAL IN RAJ KUMAR CHAWLA & ORS. VS. ITO (2005) 94 ITD 1 (DEL)(SB) WAS CONFRONTED WITH SIMILAR/ IDENTICAL FACTS. THE QUESTIONS REQUIRED TO BE ANSWERED BY THE SPECIAL BENCH WERE AS UNDER:- '1. WHETHER THE PROVISO TO S. 143(2) OF THE I.T. ACT.1961, WHICH MANDATES THE SERVICE OF NOTICE WITHIN 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN IS FILED, ALSO APPLIES TO THE RETURNS FILED PURSUANT TO NOTICE UNDER S. 148 OF THE I.T. ACT, 1961? 2. IF THE ANSWER TO THE AFORESAID QUESTION IS IN THE AFFIRMATIVE THEN WHAT IS THE EFFECT OF NON- SERVICE OF NOTICE UNDER THE PROVISO TO S. 143(2) WITHIN THE TIME PRESCRIBED, TO THE RETURN FILED PURSUANT TO S. 148 OF THE I.T. ACT, 1961?' THE HON'BLE SPECIAL BENCH, CONCLUDED THAT IN VIEW OF THE LEGAL FICTION CREATED BY SEC. 148 THAT A RETURN FILED UNDER THAT SECTION IS TO BE TREATED AS ONE UNDER SEE. 139, PROVISO TO SEC. 143(2) ALSO APPLIES TO A RETURN FILED IN RESPONSE TO NOTICE U/S, 148 AND NO ASSESSMENT CAN BE MADE, IF THE NOTICE U/S. 143(2) IS NOT SERVED WITHIN THE TIME PRESCRIBED BY THE PROVISO U/S. 143(2). IN THE OPERATIVE PART. THE HON'BLE SPECIAL BENCH, HELD AS UNDER :- '39. IT MAY BE NOTED THAT NO DOUBT, THE FOUNDATION TO ASSESS OR REASSESS IS LAID BY ISSUE OF A VALID NOTICE UNDER S. 148 BUT SUCH JURISDICTION IS SUBJECT TO FURTHER COMPLIANCE WAS HAS BEEN STIPULATED IN THE STATUTE ITSELF. IF COMPLIANCE OF THE PROVISO IS NOT MADE, THE VERY PURPOSE OF ITA NO. 1721/BANG/2018 PAGE 11 OF 14 CREATING THE PROVISO IS DEFEATED, I.E. UNCERTAINTY OF ASSESSEE WITH RESPECT TO ASSESSMENT SHALL CONTINUE. IT IS AGAIN A SETTLED PRINCIPLE OF INTERPRETATION THAT NO CONSTRUCTION OF A STATUTE SHOULD BE MADE IN A MANNER, WHICH LEAVES A STATUTE REDUNDANT, ON THE CONTRARY LAW REQUIRES A STRICT INTERPRETATION OF THE PROVISO. WE MAY HERE CLARIFY THAT PROVISIONS OF LIMITATION ARE TO BE STRICTLY CONSTRUED. AN ILLUMINATING REFERENCE TO THIS ASPECT CAN BE FOUND IN THE FOLLOWING OBSERVATION OF THE SUPREME COURT IN THE CASE OF K. M. SHARMA VS. ITO (SUPRA). 'A FISCAL STATUTE MORE PARTICULARLY A PROVISION SUCH AS THE PRESENT ONE REGULATING PERIOD OF LIMITATION MUST RECEIVED STRICT CONSTRUCTION. THE LAW OF LIMITATION IS INTENDED TO GIVE CERTAINTY AND FINALITY TO LEGAL PROCEEDINGS AND TO AVOID EXPOSURE TO RISK OF LITIGATION TO LITIGANTS FOR AN INDEFINITE PERIOD ON FUTURE UNFORESEEN EVENTS.' IF LIMITATIONS ARE NOT FOLLOWED STRICTLY, CHAOTIC SITUATION WOULD FOLLOW. 40. IN THE LIGHT OF THE ANALYSIS OF THE RELEVANT PROVISIONS OF LAW AND JUDICIAL PRECEDENTS, WE ARE OF THE CONSIDERED VIEW THAT THE RETURN FILED PURSUANT TO NOTICE UNDER S. 148 OF THE ACT MUST BE ASSUMED AND TREATED TO BE A RETURN FILED UNDER S. 139 OF THE ACT AND THE ASSESSMENT MUST THEREAFTER BE MADE UNDER S. 143 OR 144 OF THE ACT AFTER COMPLYING WITH ALL THE MANDATORY PROVISIONS. ACCORDINGLY, IT IS INCUMBENT UPON THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER S. 143 (2) OF THE ACT WITHIN THE PERIOD AS STIPULATED IN THE PROVISO THEREUNDER. IN THIS VIEW OF THE MATTER, THE FIRST QUESTION BEFORE THE SPECIAL BENCH IS ANSWERED IN AFFIRMATIVE.' 15. SEC.148 OF THE ACT WAS AMENDED BY THE FINANCE ACT, 2006 BY INSERTION OF TWO PROVISO BELOW SUB-SECTION (1) AND AN EXPLANATION. THE AMENDED PROVISIONS READ AS FOLLOWS: 'SEC.148: ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMENT. (1) BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION 147, THE ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INCOME OR THE INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR CORRESPONDING TO THE RELEVANT ASSESSMENT YEAR, IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED; AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139: PROVIDED THAT IN A CASE -- (A) WHERE A RETURN HAS BEEN FURNISHED DURING THE PERIOD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDING ON THE 30TH DAY OF SEPTEMBER, 2005 IN RESPONSE TO A NOTICE SERVED UNDER THIS SECTION, AND (B) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER SUB-SECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SPECIFIED IN THE PROVISO TO SUB-SECTION (2) OF SECTION 143, AS IT STOOD IMMEDIATELY BEFORE THE AMENDMENT OF SAID SUB-SECTION BY THE FINANCE ACT, 2002 ITA NO. 1721/BANG/2018 PAGE 12 OF 14 (20 OF 2002) BUT BEFORE THE EXPIRY OF THE TIME LIMIT FOR MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS SPECIFIED IN SUB-SECTION (2) OF SECTION 153, EVERY SUCH NOTICE REFERRED TO IN THIS CLAUSE SHALL BE DEEMED TO BE A VALID NOTICE: PROVIDED FURTHER THAT IN A CASE-- (A) WHERE A RETURN HAS BEEN FURNISHED DURING THE PERIOD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDING ON THE 30TH DAY OF SEPTEMBER, 2005, IN RESPONSE TO A NOTICE SERVED UNDER THIS SECTION, AND (B) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER CLAUSE (II) OF SUB- SECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SPECIFIED IN THE PROVISO TO CLAUSE (II) OF SUB-SECTION (2) OF SECTION 143, BUT BEFORE THE EXPIRY OF THE TIME LIMIT FOR MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS SPECIFIED IN SUB- SECTION (2) OF SECTION 153, EVERY SUCH NOTICE REFERRED TO IN THIS CLAUSE SHALL BE DEEMED TO BE A VALID NOTICE. EXPLANATION : FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT NOTHING CONTAINED IN THE FIRST PROVISO OR THE SECOND PROVISO SHALL APPLY TO ANY RETURN WHICH HAS BEEN FURNISHED ON OR AFTER THE 1ST DAY OF OCTOBER, 2005 IN RESPONSE TO A NOTICE SERVED UNDER THIS SECTION.' THE TWO PROVISOS IN SUB-SECTION (1) TO SECTION 148 HAS BEEN INSERTED WITH RETROSPECTIVE EFFECT FROM 1ST OCTOBER, 1991. THE GIST OF THE TWO PROVISOS MAY SUITABLY BE STATED THUS-- WHERE A RETURN HAS BEEN FURNISHED DARING THE PERIOD COMMENCING ON 1ST OCTOBER, 1991 AND ENDING ON 30TH SEPTEMBER, 2005, IN RESPONSE TO A NOTICE OF REASSESSMENT SERVED UNDER SECTION 148, AND SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER SECTION 143(2) [OR 143(2)(II), AS THE CASE MAY BE] AFTER THE EXPIRY OF TWELVE MONTHS AS SPECIFIED IN THE RELEVANT PROVISO BUT BEFORE THE EXPIRY OF THE TIME-LIMIT FOR MAKING THE ASSESSMENT, REASSESSMENT OR RE-COMPUTATION AS SPECIFIED IN SECTION 153(2), SUCH (OTHERWISE TIME-BARRED) NOTICE SHALL BE DEEMED TO BE A VALID NOTICE. FURTHER, THE NEW EXPLANATION INSERTED WITH EFFECT FROM 1ST OCTOBER, 2005, SPECIFICALLY CLARIFIES THAT THE AFORESTATED (NEWLY INSERTED) PROVISOS SHALL NOT APPLY TO ANY RETURN WHICH HAS BEEN FURNISHED ON OR AFTER 1ST OCTOBER, 2005, IN RESPONSE TO A NOTICE SERVED UNDER SECTION 148(1) OF THE ACT. THE PURPOSE OF THE AMENDMENT IS TO ENSURE THAT NOTICES WHICH WERE ISSUED AND BARRED BY LIMITATION AND THOSE WHICH WERE NOT ISSUED AND WHICH COULD NOT HAVE BEEN ISSUED SHOULD BE VALIDATED BY THE FINANCE ACT, 2006 WITH RETROSPECTIVE EFFECT FROM 1ST APRIL, 1990 AMENDING SECTION 142 FOR THE PURPOSE OF VALIDATING NOTICES WHICH WERE OTHERWISE NOT ISSUED OR SERVED WITHIN THE TIME-LIMIT. THE INVALIDITY OF NOTICE AS WELL AS THE ABSENCE OF ANY NOTICE BECAME FATAL TO THE PROCEEDINGS AND ARE SOUGHT TO BE VALIDATED AND JUSTIFIED BY THE RETROSPECTIVE AMENDMENTS. THE EXPLANATION CLARIFIES THAT THE AMENDED PROVISIONS WILL NOT APPLY TO ANY RETURN WHICH HAS BEEN FURNISHED ON OR AFTER 1ST OCTOBER, 2005, IN RESPONSE TO A NOTICE SERVED UNDER SECTION 148(1) OF THE ACT. THUS THE LEGISLATURE HAS ACCEPTED THE POSITION THAT ISSUE AND SERVICE OF NOTICE U/S.143(2) OF THE ACT WITHIN THE TIME LIMIT LAID DOWN IN THOSE PROVISIONS IS MANDATORY. 16. IN THE LIGHT OF THE PRECEDENTS ON THE ISSUE, WE ARE, THEREFORE, OF THE VIEW THAT ISSUE AND SERVICE OF NOTICE U/S. 143(2) OF THE ACT WITHIN THE PERIOD OF LIMITATION CONTEMPLATED UNDER THE PROVISO TO SEC. 143(2)(II) IS MANDATORY FOR VALIDITY OF ASSESSMENT U/S. 147 OF THE ACT. ITA NO. 1721/BANG/2018 PAGE 13 OF 14 17. THE NEXT ISSUE IS WITH REGARD TO APPLICABILITY OF PROVISIONS OF SECTION 292BB OF THE ACT. IT IS CLEARLY FROM THE STATUTORY PROVISIONS THAT THESE PROVISIONS ONLY INSULATE THE AO FROM THE PROOF OF SERVICE OF NOTICE U/S. 143(2) OF THE ACT. IT DOES NOT IN ANY WAY INSULATE THE AO FROM DEFAULT IN ISSUING NOTICE U/S. 143(2) WITHIN THE PERIOD OF LIMITATION CONTEMPLATED THEREIN. WHEN THE RECORDS SHOW THAT THERE WAS NO ISSUE OF NOTICE U/S. 143(2) WITHIN THE PERIOD OF LIMITATION PRESCRIBED UNDER THE SAID PROVISO, THE REVENUE CANNOT TAKE ADVANTAGE OF THE PROVISIONS OF SECTION 292BB. IN OTHER WORDS, 'ISSUE OF NOTICE' AND 'SERVICE OF NOTICE' ARE TWO DIFFERENT ASPECTS AND WHAT IS COVERED BY SECTION 292BB IS ONLY 'SERVICE OF NOTICE'. NON- ISSUE OF NOTICE U/S. 143(2) WITHIN THE PERIOD OF LIMITATION WOULD NOT BE COVERED UNDER THE AMBIT OF SECTION 292BB OF THE ACT. THE DECISION OF THE TRIBUNAL IN THE CASE OF AMITHI SOFTWARE TECHNOLOGIES PVT. LTD. (SUPRA) REFERRED TO IN THE EARLIER PART OF THIS ORDER CLEARLY SUPPORTS THE PLEA OF THE ASSESSEE IN THIS REGARD. WE THEREFORE HOLD THAT ASSESSMENT PROCEEDINGS ARE INVALID FOR THE REASON THAT NOTICE U/S. 143(2) HAD NOT BEEN ISSUED AND SERVED WITHIN THE TIME LIMIT PRESCRIBED BY THOSE PROVISIONS. ACCORDINGLY, THE ORDER OF ASSESSMENT IS ANNULLED. IN VIEW OF THE CONCLUSIONS ON THE PRELIMINARY ISSUE RAISED IN THE CROSS OBJECTION, WE ARE OF THE VIEW THAT THERE IS NECESSITY TO GO INTO THE MERITS ON THE ISSUES RAISED BY THE REVENUE IN ITS APPEAL. 4.6.3 RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ASHED PROPERTIES AND INVESTMENTS (P) LTD., (SUPRA) WHICH IS SQUARELY APPLICABLE TO THE FACTUAL AND LEGAL MATRIX OF THE CASE ON HAND, I ANNUL THE ORDER OF ASSESSMENT DATED 20.03.2015 FOR ASSESSMENT YEAR 2011-12 PASSED U/S 147 R.W.S. 143(3) OF THE ACT. CONSEQUENTLY, THE ADDITIONAL GROUNDS CONVESSED BY THE ASSESSEE ARE ALLOWED. 5. SINCE THE ORDER OF ASSESSMENT PASSED U/S 147 R.W.S. 143(3) OF THE ACT DATED 20.03.2015 FOR ASSESSMENT YEAR 2011-12 IN THE CASE ON HAND HAS BEEN ANNULLED, THE OTHER GROUNDS OF APPEAL AT SL. NOS. 1 TO 6 (SUPRA) ARE RENDERED ACADEMIC AND ARE THEREFORE NOT ADJUDICATED. 6. IN THE RESULT, THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12 IS ALLOWED AS INDICATED ABOVE. ITA NO. 1721/BANG/2018 PAGE 14 OF 14 PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF OCTOBER, 2018. SD/- SD/- BANGALORE. DATED: 31 ST OCTOBER, 2018. /NS/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE. (LALIET KUMAR) (JASON P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER