M/s. Sindhu Cargo Services Private Limited, Bengaluru V. Deputy Commissioner Of Income Tax, Circle- 6(1)(1), Bengaluru

ITA 1776/BANG/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6514 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-09-2020
• Assessment Year: 2016-2017
• Appeal Filed On: 14-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYADARSHI MISHRA
• Assessee Lawyers: SIDDESH S GADDI
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Validity of assessment; Tax effect; Revised return; Set aside
• Section: 139; 143(3); 142(1); 133(6); 139(5); 143(2); 139(1); 113; 43

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI A.K GARODIA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.1776/BANG/2019 ASSESSMENT YEAR : 2016-17 M/S SINDHU CARGO SERVICES PVT. LTD., BLOCK 3 SINDHU LOGISTICS PARK, 34, NILAKUNTE BETTAHALASURU, HUNSEMARANAHALLI POST, BELLARY-562 157. PAN AACCS 9658 P VS. THE DY. COMMISSIONER OF INCOME-TAX, CIRCLE-6(1)(1), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI SIDDESH S GADDI, C.A REVENUE BY : SHRI PRIYADARSHI MISHRA, JCIT (DR) DATE OF HEARING : 09-09-2020 DATE OF PRONOUNCEMENT : 16-09-2020 ORDER PER BEENA PILLAI, JUDICIAL MEMBER PRESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAINST O RDER DATED 24/06/2019 PASSED BY LD.CIT(A)-6, BANGALORE F OR ASSESSMENT YEAR 2016-17 ON FOLLOWING GROUNDS OF APP EAL: 1. THE IMPUGNED ORDER PARTLY UPHOLDING ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT IS ERRONEOUS AND CO NTRARY TO THE LAW AND FACTS, AGAINST WEIGHT OF EVIDENCE AND PROBABILI TIES OF THE CASE; 2. THE IMPUGNED ORDER PASSED BY THE LEARNED CIT(A), TO THE EXTENT PREJUDICIAL TO THE APPELLANT, IS NOT JUSTIFIED IN L AW AND ON FACTS AND CIRCUMSTANCES OF THE CASE; PAGE 2 OF 10 ITA NO.1776/BANG/2019 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE ORDER OF THE LEARNED AO IS BA D IN LAW AND ON FACTS AS THE NOTICE UNDER SECTION 143(2) OF THE ACT IS TIME BARRED; 4. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING DISALLOWANCE OF BROKERAGE AND COMMISSION ON SALES T O THE EXTENT OF RS. 13,95,847/-; S. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING DISALLOWANCE OF ADVERTISEMENT EXPENSES OF RS. 4,11, 175/-; 6. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING DISALLOWANCE OF 'BUSINESS PROMOTION -SALES' EXPENSE S OF RS. 33,25,375/-; 7. THE LEARNED CIT(A) IN UPHOLDING ADDITIONS TO THE RETURNED INCOME, HAS ERRED IN NOT CONSIDERING SUBMISSIONS MA DE IN SUPPORT OF THE CLAIM; 8. THE LEARNED CIT(A) HAS ERRED IN UPHOLDING ADHOC DISALLOWANCE; 9. THE LEARNED CIT(A) AND AO HAVE ERRED IN NOT INVO KING PROVISIONS OF SECTION 133(6) TO GET RELEVANT INFORMATION ON GE NUINENESS OF THE CLAIM OF DEDUCTION; 10. THE LEARNED CIT(A) AND AO HAVE FAILED TO ALLOW DEDUCTION OF EXPENSES WITHOUT CONSIDERING THAT THE SAME HAS BEEN ROUTED T HROUGH BANKING CHANNELS (WHEREVER IT EXCEEDED STATUTORY LIMIT) AND APPROPRIATE TAXES THEREON HAS BEEN DEDUCTED UNDER THE PROVISION S OF THE ACT; 11. THE IMPUGNED ADJUSTMENTS BEING MERELY BASED ON PRESUMPTION AND SURMISES, IS TO BE DELETED; 12. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN NOT APPRECIATING THAT THE THERE IS LACK OF OPPORTUNITY OF BEING HEARD AND THE ASSESSMENT ORDER HAS BEEN PASSED AGAINST THE PR INCIPLES OF NATURAL JUSTICE; 13. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN INSISTING ON CONDITION TO ALLOW DEDUCTIBILITY OF EXPENSES WHICH IS NOT PRESENT IN THE ACT; 14. THE LEARNED CIT(A) HAS ERRED ON LAW ON AND ON F ACTS IN NOT APPRECIATING THAT THE APPELLANT HAD ONLY PROVIDED S AMPLE INVOICES AND THE APPELLANT WAS NOT PROVIDED AN OPPORTUNITY T O FURNISH ANY ADDITIONAL DOCUMENT BEFORE BEING PROCEEDED AGAINST. (TOTAL TAX EFFECT: RS. RS. 16,16,808/-) ON THE BASIS OF ABOVE GROUNDS AND OTHER GROUNDS WHI CH MAY BE URGED AT THE TIME OF HEARING WITH THE CONSENT OF TH E HONOURABLE TRIBUNAL, IT IS PRAYED THAT THE ORDER PASSED UNDER SECTION 250, TO THE EXTENT IT IS AGAINST THE APPELLANT, BE QUASHED AND RELIEF SOUGHT BE GRANTED. BRIEF FACTS OF THE CASE ARE AS UNDER: 2. ASSESSEE IS A PRIVATE LIMITED COMPANY AND FILED ITS RETURN OF INCOME FOR YEAR UNDER CONSIDERATION ELECT RONICALLY PAGE 3 OF 10 ITA NO.1776/BANG/2019 ON 28/09/2016 DECLARING LOSS OF RS.1,04,95,917/-. T HE SAID RETURN WAS FOUND DEFECTIVE AND LD.AO ISSUED NOTICE UNDER SECTION 139(9) OF THE ACT. IN RESPONSE TO NOTICE, A SSESSEE CORRECTED THE RETURN ON 23/06/2017. THE CASE WAS SE LECTED FOR SCRUTINY UNDER CASS AND NOTICE UNDER SECTION 14 3(2) WAS ISSUED ON 14/08/2018. SUBSEQUENTLY, NOTICE UNDE R SECTION 142(1) OF THE ACT, WAS ISSUED CALLING FOR V ARIOUS INFORMATION AND DETAILS. LD.AO EXAMINED DETAILS FIL ED BY ASSESSEE AND PASSED ORDER UNDER SECTION 143(3) OF T HE ACT ON 28/12/2018, MAKING FOLLOWING ADDITIONS: BROKERAGE AND COMMISSION ON SALES RS.13,95,847/- ADVERTISE MEANT RS.4,11,175/- BUSINESS PROMOTION-SALES RS.33,25,375/- OFFICE FUNCTION RS.4,82,485/- 3. AGGRIEVED BY ADDITIONS MADE BY LD.AO, ASSESSEE PREFERRED APPEAL BEFORE LD.CIT(A). 4. BEFORE LD.CIT(A), ASSESSEE ALLEGED THAT, ASSESSM ENT ORDER PASSED BY LD.AO DATED 20/12/2018 IS BEYOND PE RIOD OF LIMITATION AS, TIME LIMIT FOR PASSING ASSESSMENT ORDER STARTS FROM DATE OF ORIGINAL RETURN FILED BEING 28/ 09/2016. LD.CIT(A) WHILE CONSIDERING THIS ISSUE DECIDED AS U NDER: FROM A READING OF THE ABOVE PROVISIONS, IT IS CLEA R THAT THE IF THE ASSESSEE RECTIFY THE DEFECT WITHIN THE TIME ALLOWED , THEN THE CORRECTED RETURN CAN BE AS A VALID RETURN. THEREFOR E, THE RETURN DATED 28/09/2016 WOULD HAVE REMAINED AN INVALID RETURN BU T FOR THE APPELLANT HAVING FILED THE CORRECTED RETURN ON 22/0 6/2017 IN RESPONSE TO THE NOTICE U/S 139(9). THAT BEING THE C ASE, THE RETURN FILED ON 22/06/2017 BECOMES THE VALID RETURN AND TH E PERIOD OF LIMITATION IS TO BE COUNTED FROM THAT DATE. THE NOT ICE U/S 143(2) WAS ISSUED ON 14/08/2018 I.E. WITHIN SIX MONTHS OF THE END OF THE YEAR WHEN THE VALID RETURN WAS FILED AND HENCE THE NOTIC E U/S 143(2) IS HELD TO NOT HAVE BEEN BARRED BY LIMITATION. ACCORDI NGLY, THE PAGE 4 OF 10 ITA NO.1776/BANG/2019 ASSESSMENT COMPLETED PURSUANT TO THE ISSUE OF THE N OTICE U/S 143(2) IS VALID. THE GROUND OF APPEAL RAISED BY THE APPELL ANT HAS NO MERIT AND IS DISMISSED AS SUCH 5. ON MERITS, LD.CIT(A), PARTLY GRANTED RELIEF TO A SSESSEE IN RESPECT OF ADDITION MADE OF ADVERTISEMENT EXPENS ES, BUSINESS PROMOTION EXPENSES. REGARDING BROKERAGE AN D COMMISSION ON SALES AND OFFICE FUNCTION EXPENSES, L D.CIT(A) UPHELD ADDITIONS. 6. AGGRIEVED BY ORDER OF LD.CIT(A), ASSESSEE IS IN APPEAL BEFORE US NOW. 7. AT THE OUTSET, LD.AR SUBMITTED THAT, IN GROUND N O.3 ASSESSEE CHALLENGES VALIDITY OF ASSESSMENT ORDER PA SSED UNDER SECTION 143(3), AS IT IS PASSED BEYOND PERIOD OF LIMITATION. 8. LD.AR SUBMITTED THAT, INTIMATION OF ORIGINAL RET URN BEING DEFECTIVE WAS ISSUED TO ASSESSEE ON 19/06/201 7. IT IS ALSO BEEN SUBMITTED THAT AS 19/06/2017 AND ASSESSEE RECTIFIED THE DEFECTS ON 23/06/2017. LD.AO ISSUED N OTICE UNDER SECTION 143(2) ON 14/08/2018, RECKONING PERIO D OF LIMITATION FROM DATE ON WHICH DEFECTS WERE RECTIFIE D. IT WAS SUBMITTED THAT, RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 139(9) OF THE ACT, IS NOT FRESH RETURN, BUT IS IN CONTINUATION OF ORIGINAL RETURN RECTIFYING SPECIFIE D DEFECTS, INDICATED IN NOTICE ISSUED UNDER SECTION 139(9) OF THE ACT. IT WAS SUBMITTED THAT, PROVISIONS OF SECTION 139(9) OF THE ACT PROVIDE OPPORTUNITY TO ASSESSEE TO REMOVE ANY DEFEC TS IN ORIGINAL RETURN FILED, AND IF SUCH DEFECT/S ARE REM OVED WITHIN TIME PERIOD ALLOWED UNDER SECTION 139 OF THE ACT, T HEN THE PAGE 5 OF 10 ITA NO.1776/BANG/2019 SAME SHOULD BE TREATED AS A VALID RETURN DULY FILED WITH EFFECT FROM THE DATE OF FILING OF ORIGINAL RETURN. 9. HE SUBMITTED THAT, ORIGINAL RETURN WAS FILED BY ASSESSEE ON 28/09/2016, AND TIME LIMIT FOR ISSUANCE OF NOTIC E UNDER SECTION 143(2) ENDED ON 30/09/2017. HE SUBMITTED TH AT, IN PRESENT FACTS OF CASE, NOTICE UNDER SECTION 143(2) HAVE BEEN ISSUED ON 14/08/2018 WHICH IS BEYOND PERIOD OF LIMI TATION, AND HENCE ASSESSMENT ORDER PASSED IS INVALID. LD.AR SUBMITTED THAT, IN PRESENT FACTS OF CASE, LD.AO ISS UED NOTICE U/S.139(9) OF THE ACT ON 19/06/2017, GRANTING ASSES SEE 15 DAYS TO RECTIFY THE DEFECTS. HE SUBMITTED THAT DEFE CTS WERE REMOVED ON 23/06/2017, WHICH IS WELL WITHIN TIME PE RIOD ALLOWED AS PER NOTICE U/S.139(9) OF THE ACT. 10. HE SUBMITTED THAT, IT IS AN ACCEPTED PRINCIPLE THAT, DATE OF REVISED RETURN/RETURN CURING ANY DEFECT HAS NO R ELEVANCE, INSOFAR AS, ISSUANCE OF NOTICE UNDER SECTION 143 (2 ) OF THE ACT IS CONCERNED. HE SUBMITTED THAT, PROVISO TO SEC TION 143(2) REQUIRES NOTICE TO BE ISSUED WITHIN PERIOD O F 6 MONTHS FROM END OF FINANCIAL YEAR IN WHICH RETURN WAS FURN ISHED UNDER SECTION 139(1) OF THE ACT. THE PROVISION DOES NOT EXTEND THE AMBIT TO DATE ON WHICH REVISED RETURN OR DEFECT IF ANY IN THE RETURN IS RECTIFIED. HE PLACED RELIANCE ON DECISION OF HONBLE GUJARAT HIGH COURT IN CASE OF KUNAL STRUCTURES INDIA PVT.LTD. VS DCIT, REPORTED IN (2020) 113 TAXMANN.COM 577 . 11. ON THE CONTRARY, LD.SR.DR PLACED RELIANCE ON OBSERVATIONS OF LD.CIT(A) WHICH REPRODUCED HEREINAB OVE. PAGE 6 OF 10 ITA NO.1776/BANG/2019 12. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SI DES IN LIGHT OF RECORDS PLACED BEFORE US 13. WE HAVE ALSO PERUSED DECISION RELIED ON BY LD.A R. HONBLE GUJARAT HIGH COURT HAD OCCASION TO CONSIDER IDENTICAL SITUATION, AS THE ONE BEFORE US. IT IS NO TED THAT, HONBLE COURT WHILE DECIDING SIMILAR ISSUES BY CONSIDERED DECISIONS RENDERED BY VARIOUS HIGH COURTS. HONBLE GUJARAT HIGH COURT OBSERVED AND CONCLUDED AS UNDER: 16. IT MAY BE NOTED THAT THERE IS NO CONCEPT OF CORREC TED RETURN OF INCOME UNDER THE ACT. THEREFORE, IN EFFECT AND S UBSTANCE, WHAT THE NOTICE UNDER SUBSECTION (9) OF SECTION 139 OF THE ACT DOES IS TO CALL UPON THE PETITIONER TO REMOVE THE D EFECTS POINTED OUT THEREIN. THEREFORE, MERE REFERENCE TO THE EXPRE SSION CORRECTED INCOME IN THE NOTICE UNDER SUBSECTION ( 9) OF SECTION 139 OF THE ACT DOES NOT MEAN THAT A FRESH RETURN OF INCOME HAS BEEN FILED UNDER THAT SUBSECTION. THUS, UNDER SUBSE CTION (9) OF SECTION 139 OF THE ACT, IT IS ONLY THE ORIGINAL RET URN WHICH GETS CORRECTED AND NO NEW RETURN IS FILED. IN OTHER WORD S, THE ORIGINAL RETURN WHICH WAS DEFECTIVE WHEN IT WAS FILED IS REC TIFIED UPON REMOVAL OF THE DEFECTS UNDER SUBSECTION (9) OF SECT ION 139 OF THE ACT AND BECOMES A VALID RETURN. THUS, AS HELD BY TH E BOMBAY HIGH COURT IN THE DECISIONS CITED BY THE LEARNED CO UNSEL FOR THE PETITIONER AS REFERRED TO HEREINABOVE, THE ACTION O F REMOVAL OF THE DEFECTS WOULD RELATE BACK TO THE FILING OF THE ORIG INAL RETURN OF INCOME AND ACCORDINGLY, IT IS THE DATE OF FILING OF THE ORIGINAL RETURN WHICH HAS BEEN CONSIDERED FOR THE PURPOSE OF COMPUTING THE PERIOD OF LIMITATION UNDER SUBSECTION (2) OF SE CTION 143 OF THE ACT AND NOT THE DATE ON WHICH THE DEFECTS ACTUALLY CAME TO BE REMOVED. 17. REFERENCE MAY ALSO BE MADE TO THE DECISION OF THIS COURT IN CASE OF PRINCIPAL COMMISSIONER OF INCOMETAX1 V. BAB UBHAI RAMANBHAI PATEL (SUPRA), ON WHICH RELIANCE HAS BEEN PLACED BY THE LEARNED SENIOR STANDING COUNSEL FOR THE RESPOND ENTS, WHEREIN THIS COURT HAS PLACED RELIANCE UPON A DECIS ION OF THE ALLAHABAD HIGH COURT IN CASE OF DHAMPUR SUGAR MILLS V. CIT, [1973] 90 ITR 236, WHEREIN IT HAS BEEN HELD THAT TH ERE IS A CLEAR DISTINCTION BETWEEN REVISED RETURN AND A CORRECTION OF RETURN. ONCE A REVISED RETURN IS FILED, THE ORIGINAL RETURN MUST BE TAKEN TO HAVE BEEN WITHDRAWN AND SUBSTITUTED BY A FRESH R ETURN FOR THE PURPOSE OF ASSESSMENT. THUS, WHEN A REVISED RET URN IS FILED PAGE 7 OF 10 ITA NO.1776/BANG/2019 UNDER SECTION 139(5) OF THE ACT, THE ORIGINAL RETUR N GETS SUBSTITUTED AND IT IS THE REVISED RETURN WHICH IS T O BE CONSIDERED AS A RETURN FOR THE PURPOSE OF ASSESSMENT. HOWEVER, THE COURT HAS CLEARLY DRAWN A DISTINCTION BETWEEN A REVISED R ETURN AND A CORRECTION OF RETURN. ADVERTING TO THE FACTS OF THE PRESENT CASE, THIS CASE RELATES TO CORRECTION OF THE RETURN OF IN COME ORIGINALLY FILED AND NOT A REVISED RETURN. HAD IT BEEN A CASE OF FILING OF A REVISED RETURN OF INCOME, THE ORIGINAL RETURN OF IN COME WOULD HAVE STOOD SUBSTITUTED BY THE REVISED RETURN, BUT W HEN IT COMES TO CORRECTION OF A RETURN OF INCOME, IT IS ONLY THE ORIGINAL RETURN OF INCOME WHICH GETS CORRECTED. 18. SINCE THE IMPUGNED NOTICE HAS BEEN ISSUED UNDER SU BSECTION (2) OF SECTION 143 OF THE ACT, REFERENCE MAY BE MAD E TO THE SAID SUBSECTION, WHICH READS AS UNDER: 143.ASSESSMENT. (1) WHERE A R ETURN HAS BEEN MADE UNDER SECTION 139, OR IN RESPONSE TO A NOTICE UNDER SUBSE CTION (1) OF SECTION 142, SUCH RETURN SHALL BE PROCESSED IN THE FOLLOWING MANNER, NAMELY: XXXXXXX (2) WHERE A RETURN HAS BEEN FURNISHED UNDER SECTION 139, OR IN RESPONSE TO A NOTICE UNDER SUBSECTION (1) OF SECTION 142, THE ASSESSING OFFICER OR THE PRESCRIBED INCOME TAX AUTHORITY, AS THE CASE MAY BE, IF, CONSIDERS IT NEC ESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESSIV E LOSS OR HAS NOT UNDERPAID THE TAX IN ANY MANNER, SH ALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM, ON A DATE TO BE SPECIFIED THEREIN, EITHER TO ATTEND THE OFFICE O F THE ASSESSING OFFICER OR TO PRODUCE, OR CAUSE TO BE PRO DUCED BEFORE THE ASSESSING OFFICER ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN: PROVIDED THAT NO NOTICE UNDE R THIS SUBSECTION SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONT HS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RET URN IS FURNISHED. 19. ON A PLAIN READING OF SUB-SECTION (2) OF SECTION 1 43 OF THE ACT, IT IS APPARENT THAT THE ASSESSING OFFICER OR THE PR ESCRIBED INCOME- TAX AUTHORITY MUST ISSUE A NOTICE UNDER THAT SUB-SE CTION ONLY IN THOSE CASES WHERE A RETURN HAS BEEN MADE UNDER SECT ION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SECTION 142(1) , 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, B UT SUCH NOTICE MUST BE SERVED WITHIN A PERIOD OF SIX MONTHS FROM T HE END OF THE FINANCIAL YEAR IN WHICH SUCH RETURN IS FURNISHED. T HUS, IF, AFTER FURNISHING A RETURN OF INCOME, THE ASSESSEE DOES NO T RECEIVE A NOTICE UNDER SUB-SECTION (2) OF SECTION 143 OF THE ACT WITHIN THE PERIOD REFERRED TO IN THE SUB-SECTION, THE ASSESSEE IS ENTITLED TO PAGE 8 OF 10 ITA NO.1776/BANG/2019 PRESUME THAT THE RETURN HAS BECOME FINAL AND NO SCR UTINY PROCEEDINGS ARE TO BE STARTED IN RESPECT OF THAT RE TURN. IT IS ONLY AFTER THE ISSUANCE OF NOTICE UNDER SUB-SECTION (2) OF SECTION 143 OF THE ACT THAT THE ASSESSING OFFICER CAN PROCEED FURT HER UNDER SUB- SECTION (3) THEREOF TO MAKE AN ASSESSMENT ORDER. TH EREFORE, THE NOTICE UNDER SECTION 143(2) OF THE ACT IS A STATUTO RY NOTICE, UPON ISSUANCE OF WHICH, THE ASSESSING OFFICER ASSUMES JU RISDICTION TO FRAME THE SCRUTINY ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OF THE ACT. CONSEQUENTLY, IF SUCH NOTICE IS NOT ISSUED WITHIN THE PERIOD SPECIFIED IN SUB-SECTION (2) OF SECTION 143 OF THE ACT VIZ. BEFORE THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED, IT IS NOT PERMISS IBLE FOR THE ASSESSING OFFICER TO PROCEED FURTHER WITH THE ASSES SMENT. 20. IN THE FACTS OF THE PRESENT CASE, AS DISCUSSED EAR LIER, THE PETITIONER FILED ITS RETURN OF INCOME UNDER SUB-SEC TION (1) OF SECTION 139 OF THE ACT ON 10.09.2016. SINCE THE RETURN WAS DEFECTIVE, THE PETITIONER WAS CALLED UPON TO REMOVE SUCH DEFECTS, WHICH CAME TO BE REMOVED ON 07.07.2017, THAT IS, WITHIN THE TIME ALLOWED BY THE ASSESSING OFFICER. THEREFORE, UPON SUCH DEFECTS BEING REMOVED, THE RETURN WOULD RELATE BACK TO THE DATE O F FILING OF THE ORIGINAL RETURN, THAT IS, 10.09.2016 AND CONSEQUENT LY, THE LIMITATION FOR ISSUANCE OF NOTICE UNDER SUB-SECTION (2) OF SECTION 143 OF THE ACT WOULD BE 30.09.2017, VIZ. SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN UNDER SUB -SECTION (1) OF SECTION 139 CAME TO BE FILED. IN THE PRESENT CASE, IT IS AN ADMITTED POSITION THAT THE IMPUGNED NOTICE UNDER SUB-SECTION (2) OF SECTION 143 OF THE ACT HAS BEEN ISSUED ON 09.08.2017, WHICH IS MUCH BEYOND THE PERIOD OF LIMITATION FOR ISSUANCE OF SUC H NOTICE AS ENVISAGED UNDER THAT SUB-SECTION. THE IMPUGNED NOTI CE, THEREFORE, IS CLEARLY BARRED BY LIMITATION AND CANN OT BE SUSTAINED. 21. FOR THE FOREGOING REASONS, THE PETITION SUCCEEDS A ND IS, ACCORDINGLY, ALLOWED. THE IMPUGNED NOTICE DATED 09. 08.2018 ISSUED UNDER SUB-SECTION (2) OF SECTION 143 OF THE ACT AND ALL PROCEEDINGS TAKEN PURSUANT THERETO ARE HEREBY QUASH ED AND SET ASIDE. RULE IS MADE ABSOLUTE ACCORDINGLY, WITH NO O RDER AS TO COSTS. 14. LD.SR.DR COULD NOT PRODUCE BEFORE US ANY CONTRA RY DECISION BY HONBLE JURISDICTION HIGH COURT . BASED ON ABOVE DISCUSSIONS, WE HOLD THE IMPUGNED NO TIDE DATED 14/08/2018 IS ISSUED BEYOND THE PERIOD OF LIM ITATION. RESPECTIVELY FOLLOWING VIEW TAKEN BY HONBLE GUJRAT HIGH COURT IN CASE OF KUNAL STRUCTURES INDIA PVT.LTD. VS DCIT PAGE 9 OF 10 ITA NO.1776/BANG/2019 (SUPRA) , WE QUASH AND SET ASIDE IMPUGNED NOTICE DATED 14/08/2018 ISSUED UNDER SECTION 143(2) OF THE ACT, AND ALL PROCEEDINGS TAKEN PURSUANT THERETO. AS WE ALLOW GROUND 3, OTHER GROUNDS ALLEDGED ON MER ITS BECOMES ACADEMIC. IN THE RESULT, APPEAL FILED BY ASSESSEE STANDS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH SEPT, 2020. SD/- SD/- (A.K GARODIA) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 16 TH SEPT., 2020. /VMS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL. BANGALORE. PAGE 10 OF 10 ITA NO.1776/BANG/2019 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -09-2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -09-2020 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -09-2020 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -09-2020 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -09-2020 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -09-2020 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK -09-2020 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS