PAGE 1 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 1 THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SHRI GEORGE GEORGE K., J.M AND SHRI A MOHAN ALANKAMONY, A.M. ITA NO.223/BANG/2009 [ASSESSMENT YEAR 2004-05] THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE-8(1), BANGALORE. - APPELLANT VS SHRI P V SHETTY, #44, I 'A' MAIN ROAD, R M V EXTENSION, BANGALORE. - RESPONDENT C.O.NO.14/BANG/2009 (ASST. YEAR 2004-05) (BY ASSESSEE) REVENUE BY : SMT. V S SREELEKHA ASSESSEE BY : SHRI MANOJ PUKALE & SHRI P DINESH O R D E R PER GEORGE GEORGE K : THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE ARISE OUT OF CIT(A)'S ORDER DATED 19/1 /2009. THE CONCERNED ASST. YEAR IS 2004-05. 2. THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS:- PAGE 2 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 2 ASSESSEE IS AN INDIVIDUAL. THE ASSESSEE FILED TH E RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR ON 31.10.2004 DECLARING TOTAL INCOME OF RS.2,61,574/- AND THE AGR ICULTURAL INCOME OF RS.1,20,000/-. SUBSEQUENTLY, A REVISED RE TURN WAS FILED ON 27.7.2005 DECLARING TOTAL INCOME OF RS.35, 35,699/- AND AGRICULTURAL INCOME OF RS.1,20,000/-. LATER ANOTHE R REVISED RETURN WAS FILED ON 20.3.2006 WHEREIN THE CAPITAL G AINS ON SALE OF LAND AT RAJARAJESHWARI NAGAR WAS DECLARED. IN THE MEANWHILE, A NOTICE U/S 148 WAS ISSUED TO WHICH THE APPELLANT FI LED A LETTER DATED 22.5.2006 REQUESTING THE ASSESSING AUTHORITY T O TREAT THE RETURN FILED ON 20.3.2006 AS RETURN IN RESPONSE TO THE AFORESAID NOTICE. THE LEARNED ASSESSING AUTHORITY STATES THAT THE HEARING NOTICE WAS ISSUED ON THE APPELLANT; THERE W AS NO RESPONSE TO THE NOTICE. HOWEVER, HE FURTHER ALLEGED THAT SR I CHANDRASHEKAR MATHRU, CHARTERED ACCOUNTANT APPEARED WITHOUT THE POWER OF ATTORNEY AND HE WAS DIRECTED TO APPEAR WITH POWER OF ATTORNEY WHICH HE DID NOT RESPOND. CONSEQUENTLY, IT IS ALLEGED THAT THE ASSESSING AUTHORITY WAS FORCED TO COMPLETE THE ASSESSMENT U/S 144 OF THE ACT. FURTHER, THE CAPITA L GAINS COMPUTATION AS MADE BY THE ASSESSEE WAS REVISED BY AD OPTING A DIFFERENT FAIR MARKET VALUE AS ON 1/4/1981. THE CA PITAL GAINS DECLARED HAD BEEN RECOMPUTED AT RS.2,33,10,038/- IN STEAD OF RS.1,91,17,699/- DISCLOSED BY THE ASSESSEE. THUS, S HORT FALL OF CAPITAL GAINS WAS WORKED OUT AT RS.41,92,339/-. PAGE 3 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 3 2.1 ON FURTHER APPEAL, THE CIT(A) HAD CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER AND ON REC EIPT OF THE REMAND REPORT DATED 17/11/2008 AND CONSIDERING THE ARGUMENTS OF THE ASSESSEE'S COUNSEL, ALLOWED THE APPEAL OF TH E ASSESSEE FOR THE ELABORATE REASONS MENTIONED IN PARA 7 AND 8 OF HIS ORDER. THE LEARNED CIT(A) ESSENTIALLY DECIDED THE APPEAL IN FAVOUR OF THE ASSESSEE BY HOLDING THAT THE ASSESSMENT COMPLETED WITHOUT THE SERVICE OF NOTICE U/S 143(2) TO THE APPELLANT A ND WITHOUT ISSUING SHOW CAUSE NOTICE AS PER PROVISO TO SECTION 144 IS WITHOUT JURISDICTION AND BAD IN LAW. THEREFORE, THE ASSESS MENT ORDER COMPLETED U/S 144 WITHOUT COMPLIANCE OF THE MANDATO RY PROVISIONS OF SECTION 143(2) IS INVALID AND THE SAM E IS VITIATED. THEREFORE, THE ASSESSING OFFICER WAS DIRECTED TO AC CEPT THE CAPITAL GAINS DISCLOSED BY THE ASSESSEE. 2.2 THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEF ORE US RAISING THE FOLLOWING GROUNDS:- I) THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSMENT WITHOUT THE SERVICE OF NOTICE U/S 143(2) IS BAD IN LAW, SINCE AS COULD BE VERIFIED FROM THE ASSESSMENT RECORDS. NOTICE U/S 143(2) HAS BEEN ISSUED TO THE ASSESSEE ON TWO DIFFERENT DATES. FURTHER, AS COULD BE VERIFIED FROM THE ORDER, IN RESPONSE TO THE NOTICES ISSUED, THE AR OF THE ASSESSEE HAS ALSO APPEARED ONCE WITHOUT POWER OF ATTORNEY AND HENCE HE WAS ASKED TO APPEAR WITH THE POWER OF ATTORNEY. HENCE, THE ASSESSMENT ORDER PASSED BY THE PAGE 4 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 4 AO IS VALID IN LAW AND IT IS PRAYED THAT THE SAME MAY BE RESTORED. II) THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE PROVISIONS OF SECTION 292BB OF THE ACT PROVIDE THAT WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDINGS OR COOPERATED IN ANY ENQUIRY RELATING TO 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 PROCEEDINGS OR INQUIRY UNDER THIS ACT THAT THE NOTICE WAS NOT SERVED UPON HIM OR NOTICE WAS NOT SERVED UPON HIM IN TIME. III) THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE ADDITIONS OF RS.44,65,913/- MADE UNDER THE HEAD CAPITAL GAINS BY ADOPTING THE RATE OF RS.4,432.23 PER GUNTA IS NOT A GUESS WORK. THE VALUE ADOPTED IS BASED ON THE INFORMATION OBTAINED FROM THE RECORDS OF THE SUB-REGISTRAR'S OFFICE, MADE U/S 50C OF THE ACT. IV) THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE AR OF THE ASSESSEE AHD APPEARED ONCE WITHOUT THE POWER OF ATTORNEY AND THE ASSESSEE WAS ALSO SERVED WITH A NOTICE U/S 148 DATED 21.4.2006 WHICH WAS SERVED ON THE ASSESSEE ON 27.4.2006. IN RESPONSE TO THE NOTICE ISSUED THE ASSESSEE HAS ALSO FILED A REPLY ON 20.5.2006 IN COMPLIANCE TO THE NOTICE ISSUED U/S 148 OF THE ACT. V) THE LEARNED CIT(A) SHOULD HAVE APPRECIATED THE FACT THAT THE ADDITION OF RS.44,65,913/- ON ACCOUNT OF CAPITAL GAINS IS NOT MADE BLIND FOLDED WITHOUT THE KNOWLEDGE OF THE PAGE 5 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 5 ASSESSEE. SINCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE AY 2003-04 THE FACT OF SALE OF LAND AT RAJARAJESHWARINAGAR WAS NOTICED BY THE DEPARTMENT AND THE CAPITAL GAINS ON WHICH WAS NOT DECLARED IN THE ORIGINAL RETURN FILED. WHEN ENQUIRIES STARTED FROM THE DEPARTMENT THE ASSESSEE HAS FILED TWO REVISED RETURNS BY GIVING TWO DIFFERENT AMOUNT OF SALE CONSIDERATION. IN THE ORIGINAL RETURN OF INCOME THERE WAS CONCEALMENT OF INCOME UNDER THE HEAD 'LONG TERM CAPITAL GAINS'. 2.3 THE LEARNED DR SUBMITTED THAT NOTICE U/S 143(2 ) WAS ISSUED TO THE ASSESSEE ON TWO DIFFERENT DATES. IT WAS FURTHER SUBMITTED THAT IN RESPONSE TO THE NOTICE IS SUED, THE LEARNED AUTHORIZED REPRESENTATIVE TO THE ASSESSEE A LSO APPEARED ONCE WITHOUT THE POWER OF ATTORNEY; HENCE, IT WAS SU BMITTED THAT ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS VALID IN LAW AND PRAYED THE SAME MAY BE RESTORED. IT WAS FURTHER CONTENDED BY THE LEARNED DR THAT IN VIEW OF SECTION 292BB OF T HE ACT, THE ASSESSEE IS DEBARRED FROM RAISING THE ISSUE THAT NO NOTICE U/S 143(2) HAS BEEN SERVED ON HIM. ON MERITS, IT WAS S TATED BY THE LEARNED DR THAT THE FAIR MARKET VALUE ADOPTED AS ON 1/4/1981 AT THE RATE OF 4432 PER GUNTA IS BASED ON THE INFORMAT ION OBTAINED FROM THE RECORDS OF THE SUB-REGISTRAR'S OFFICE. 2.4 THE LEARNED AR SUPPORTED THE ORDER OF THE LEAR NED CIT(A). PAGE 6 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 6 2.5 WE HAVE HEARD BOTH THE PARTIES. IN THE INSTAN T CASE, NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE ON 21ST APRIL, 2006. IN RESPONSE TO THE NOTICE ISSUED U/S 148, TH E ASSESSEE FILED A LETTER ON 22ND MAY, 2006 VIDE WHICH HE STATE D THAT THE RETURN FILED ON 20TH MARCH, 2006 SHOULD BE TREATED AS A RETURN FILED IN COMPLIANCE TO THE NOTICE U/S 148. IF THE AO CONSIDERED IT NECESSARY OR EXPEDIENT TO ENSURE THAT ASSESSEE H AS NOT UNDERSTATED THE INCOME THEN THE AO IS REQUIRED TO I SSUE NOTICE U/S 143(2). AS PER PROVISO EXISTING AT THAT RELEVA NT TIME, SUCH NOTICE WAS REQUIRED TO BE SERVED ON THE ASSESSEE WI THIN 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETUR N WAS FILED. 2.6 PROVISO TO SECTION 148 WAS INSERTED BY THE FINA NCE ACT, 2006 WITH RETROSPECTIVE EFFECT FROM 1/10/91. AS PER THIS PROVISO, IF THE ASSESSEE HAS FURNISHED THE RETURN I N RESPONSE TO A NOTICE U/S 148 DURING THE PERIOD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDING ON 30TH DAY OF OCTOBER, 200 5, THEN NOTICED SERVED UNDER SUB-SECTION 2 OF SECTION 143 S ERVED AFTER THE EXPIRY OF 12 MONTHS WAS DEEMED TO BE A VALID NOT ICE. HOWEVER, IN THE INSTANT CASE, THE RETURN IN RESPONS E TO NOTICE U/S 148 IS TO BE TREATED AS FILED ON 22ND MAY, 2006. HE NCE, BY VIRTUE OF PROVISO TO SECTION 148, NOTICE, IF SERVED AFTER THE PERIOD OF 12 MONTHS, CANNOT BE TERMED AS A VALID NO TICE. 2.7 AS PER ORDER SHEET ENTRY DATED 9TH OCTOBER, 200 6, NOTICE U/S 143(2) WAS ISSUED. NO STEPS WERE TAKEN FOR ISSUE OF PAGE 7 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 7 NOTICE FROM THE DATE WHEN THE RETURN WAS TREATED TO HAVE BEEN FILED IN RESPONSE TO NOTICE U/S 148 TO THE DATE 9TH OCTOBER, 2006. THERE WAS NO COMPLIANCE TO THIS NOTICE. THE RE IS NOTHING ON RECORD TO SUGGEST THAT SUCH NOTICE WAS SERVED ON THE ASSESSEE. THE PAPER BOOK FILED BY THE LEARNED DR CO NTAINS THE COPY OF THIS NOTICE. ON THE COPY OF THE NOTICE AVAIL ABLE ON THE FILE BEFORE US, IT IS SEEN THAT IT IS MENTIONED THA T IT WAS DISPATCHED ON 9TH OCTOBER, 06. NO DISPATCH NUMBER IS MENTIONED. FROM SUCH COPY OF NOTICE, IT IS NOT CLEA R AS TO HOW SUCH NOTICE WAS DISPATCHED. THERE IS NO ASSERTION BY THE REVENUE THAT THE NOTICE WAS DISPATCHED BY REGISTERED POST. THERE IS NO NOTING IN THE ORDER SHEET THAT NONE HAS ATTENDED THE PROCEEDINGS IN RESPONSE TO NOTICE U/S 143(2) ISSUED ON 9TH OCTOBER, 06 VIDE WHICH, THE CASE WAS FIXED FOR 16TH OCTOBER, 06. THUS, AT THAT RELEVANT TIME, NO STEPS WERE TAK EN TO VERIFY AS TO WHETHER THE NOTICE WAS SERVED OR NOT. AFTER THE ENTRY DATED 9TH OCTOBER, 06 IN THE ORDER SHEET, THE NEXT ENTRY I S DATED 3RD DECEMBER, 2007. IT IS MENTIONED VIDE THAT ORDER SH EET ENTRY THAT NOTICE U/S 143(2) ISSUED. COPY OF THAT NOTICE HAS ALSO BEEN FILED BY THE LEARNED DR. COPY OF THE NOTICE MENTIONE D THAT IT HAS BEEN DISPATCHED ON 4TH DECEMBER, 07. IT ALSO D OES NOT CONTAIN AS TO HOW THE NOTICE WAS DISPATCHED. AS PE R THIS NOTICE, HEARING WAS FIXED ON 10TH DECEMBER, 07. HOWEVER, N OTHING HAS BEEN RECORDED IN THE ORDER SHEET AS TO WHAT HAPPENE D ON 10TH DECEMBER, 07. HENCE, FROM THE ORDER SHEET ONE CANN OT INFER THAT THIS NOTICE WAS ALSO SERVED. FOR READY REFEREN CE, WE ARE PAGE 8 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 8 REPRODUCING THE ORDER SHEET ENTRY FROM 9TH OCTOBER, 06 TILL THE COMPLETION OF ASSESSMENT ORDER:- 9.10.06 NOTICE U/S 143(2) ISSUED. 3.12.07 NOTICE U/S 143(2) ISSUED. 31.12.07 PLEASE SEE THE ORDER U/S 143(3) AND D N CHALLAN. NOTICE U/S 271(1)(C). PUT UP FOR SIGNATURE. 2.8 BEFORE THE LEARNED CIT(A) IT WAS CONTENDED TH AT THE ASSESSEE'S AR SHRI CHANDRASHEKAR MATHRU, CA ATT ENDED THE HEARING WITHOUT POWER OF ATTORNEY. FROM THIS, INFER ENCE WAS DRAWN BY THE AO THAT THE NOTICE WAS RECEIVED BY THE A SSESSEE. BEFORE THE LEARNED CIT(A), COPY OF THE LETTER FROM S HRI CHANDRASHEKAR MATHRU ADDRESSED TO THE ASSESSEE WAS FILED. THE LETTER IS DATED 12TH JANUARY, 2008. IN THE LETTER I T IS MENTIONED AS UNDER:- 'I AM IN RECEIPT OF YOUR LETTER DATED 11.01.2008 AND IN THIS CONNECTION, I WOULD LIKE TO INFORM YOU THAT I AM FILING YOUR I.T. RETURNS FROM THE ASST. YEAR 2005-06 ONWARDS WITH DCIT-8(1). DURING THE LAST MONTH THROUGH ONE OF MY PROFESSIONAL COLLEAGUES I CAME TO KNOW THAT THE DCOT- 8(1) SOUGHT FOR SOME INFORMATION IN YOUR CASE. SINCE HE IS YOUR REGULAR ASSESSING OFFICER, I MET THE OFFICER TO ASCERTAIN DETAILS SOUGHT FOR AND TO INFORM YOU IN THIS REGARD. HOWEVER, ON MEETING OFFICER I CAME TO KNOW THAT HE IS SEEKING INFORMATION W.R.T. ASSESSMENT YEAR 2004-05 IN YOUR CASE. I INFORMED THE OFFICER THAT I AM NOT AWARE OF THE CASE NOR HAVING POWER OF PAGE 9 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 9 ATTORNEY TO REPRESENT YOU AND CAME BACK. THE SAME WAS CONVEYED TO YOU IMMEDIATELY AND ON ASCERTAINING FROM YOU THAT YOU HAVE NOT RECEIVED ANY NOTICE UNDER SECTION1 43(2) FROM THE DEPARTMENT IN THIS CASE, I NEVER MET THE AFORESAID OFFICER ANY FURTHER. NOW, I AM ALSO TOTALLY SURPRISED SEEING THE ORDER PASSED BY THE AFORESAID OFFICER STATING THAT I HAD APPEARED BEFORE HIM FOR HEARING IN THE AFORESAID CASE. I HEREBY CONFIRM THAT I HAD NOT APPEARED BEFORE HIM FOR HEARING IN THE AFORESAID CASE NOR FURNISHED ANY DETAILS IN THIS REGARD WHICH IS BINDING ON YOU'. AS WE HAVE MENTIONED THAT THE LETTER IS DATED 12TH JANUARY, 2008 AND IN THAT LETTER HE HAS MENTIONED THAT HE ME T THE OFFICER IN THE LAST MONTH. IT MEANS, SHRI CHANDRAS HEKAR MATHRU MET THE OFFICER CONCERNED IN THE MONTH OF DECEMBER, 2007. HENCE, EVEN IF FOR THE SAKE OF ARGUMENT IT IS ACCEP TED THAT THE NOTICE U/S 143(2) WAS SERVED THEN IT CAN BE A NOTIC E ISSUED ON 3RD DECEMBER, 2007. WE HAD ALREADY POINTED OUT THA T THE RETURN WAS FILED ON 22ND MAY, 2006 AND AS PER REQUIR EMENT OF LAW, THE NOTICE WAS REQUIRED TO BE ISSUED ON OR BEF ORE 30TH JUNE, 2007. THUS, THE NOTICE U/S 143(2) DATED 3RD DECEMB ER, 2007 WAS NOT WITHIN THE TIME LIMIT WITHIN WHICH NOTICE S HOULD HAVE BEEN ISSUED. 2.9 WE HAVE POINTED OUT THAT A PROVISO WAS INSERTE D U/S 148 SO THAT NOTICE ISSUED U/S 143(2) AFTER EXPIRY OF THE PERIOD PAGE 10 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 10 OF 12 MONTHS IN RESPECT OF RETURN FILED ON OR AFTER 1ST DAY OF OCTOBER, 91 AND ON OR BEFORE 30TH SEPTEMBER, 2005 I N RESPONSE TO NOTICE U/S 148 IS DEEMED TO BE A VALID NOTICE. IN THE MEMO EXPLAINING THE PROVISIONS OF THE FINANCE BILL, IT I S MENTIONED THAT THE RETURN FILED IN RESPONSE TO NOTICE U/S 148 IS T O BE TREATED AS IF THE RETURN IS REQUIRED TO BE FURNISHED U/S 139 A ND THE PROVISIONS OF THE ACT WILL APPLY ACCORDINGLY. AN EXP LANATION WAS ALSO INTRODUCED. THE EXPLANATION IS AS UNDER:- 'EXPLANATION FOR THE REMOVAL OF DOUBTS, IT IS HEREBY CLEARED THAT NOTHING CONTAINS 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 NOTICE SERVED U/S 148'. IN THE INSTANT CASE, THE ABOVE REFERRED EXPLANATION IS APPLICABLE. HENCE, IT IS CLEAR THAT NOTICE U/S 143(2) WAS TO BE SERVED WITHIN 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RE TURN WAS FILED. HENCE, ONE IS REQUIRED TO CONSIDERED ONLY TH E NOTICE ISSUED ON 9TH OCTOBER, 06. THERE IS NOTHING ON RECORD IN THE FORM OF ORDER SHEET OR ANY CONTENTION IN THE ASSESSMENT ORDE R THAT NOTICE U/S 143(2) DATED 9TH OCTOBER, 2006 WAS SERVE D. HENCE, IF NOTICE U/S 143(2) WAS NOT SERVED WITHIN THE PERI OD PRESCRIBED UNDER THE ACT, THE AO WAS NOT AUTHORIZED TO MAKE AS SESSMENT U/S 143(3) AND TO MAKE VARIATION IN THE RETURNED IN COME. HENCE ON THIS GROUND, THE ASSESSMENT ORDER CANNOT BE TREA TED AS VALID IN THE EYE OF LAW. PAGE 11 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 11 2.10 IN CASE THERE IS NO COMPLIANCE TO NOTICE U/S 143(2) THEN THE AO HAS TO MAKE BEST JUDGEMENT AND BEFORE P ASSING THAT ORDER, THE AO IS REQUIRED TO GIVE OPPORTUNITY T O THE ASSESSEE. SUCH OPPORTUNITY IS NOT REQUIRED IN CASE A NOTICE U/S 142(1) HAS BEEN ISSUED. NO SUCH OPPORTUNITY HAS BEE N PROVIDED BY THE AO IN THIS CASE. THIS IS A PROCEDURAL IRREGU LARITY AND FOR THIS PURPOSE, THE MATTER CAN BE RESTORED BACK ON TH E FILE OF THE AO. BUT SINCE WE ARE HOLDING THAT THE ASSESSMENT O RDER IS NOT VALID IN THE EYE OF LAW AS NOTICE U/S 143(2) WAS NOT SERVED WITHIN 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN WAS FILED, THEREFORE, THE FINDING IN RESPECT OF PROVIDING OPPO RTUNITY BECOMES ACADEMIC. 2.11 THE CONTENTION RAISED BY THE REVENUE WITH REGA RD TO GROUND NO.3 IS WITHOUT ANY SUBSTANCE IN VIEW OF THE DECISION OF THE SPECIAL BENCH IN THE CASE OF KUBER TOBACCO PROD UCTS P. LTD. V DCIT 310 ITR 300 (AT) WHEREIN IT WAS HELD THAT SE CTION 292BB IS NOT RETROSPECTIVE IN OPERATION AND IT HAD TO BE APPLIED ONLY FROM ASST. YEAR 2008-09. MOREOVER, IT CANNOT BE SAID THAT THE ASSESSEE HAS BEEN REPRESENTED BY AR PURSUANT TO 143(2) NOTICE FOR INVOKING SECTION 292BB OF THE ACT. THE CHARTERED ACCOUNTANT SHRI CHANDRASHEKAR MATHRU HAD EXPLAINED REASON FOR HIS APPEARANCE BEFORE ASSESSING OFFICER VIDE HIS LE TTER DATED 12/1/2008 ADDRESSED TO THE ASSESSEE WHICH WE HAVE A LREADY EXTRACTED (SUPRA). FOR THE AFORESAID REASONS, WE A RE OF THE VIEW PAGE 12 OF 12 ITA NO.223 /BANG/2009 C.O.NO.14/BAN G/09 12 THAT THE ORDER OF THE LEARNED CIT(A) IS CORRECT AND IN ACCORDANCE WITH LAW AND WE CONFIRM THE SAME. 2.12 IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 3. THE GROUNDS RAISED IN THE CROSS OBJECTION ARE ESSENTIALLY SUPPORTING THE ORDER OF THE LEARNED CIT( A). SINCE WE CONFIRMED THE ORDER OF THE LEARNED CIT(A), THE GROU NDS RAISED IN THE CROSS OBJECTION ARE DISMISSED AS INFRUCTUOUS. 4. IN THE RESULT, THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 18TH SEPTEMBER, 200 9. SD/- SD/- (A MOHAN ALANKAMONY) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED:18/9/2009 COPY TO :- 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT(A) CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR 6. GF 7. GF, ITAT, DELHI BENCH BY ORDER MSP/16/9/ ASSISTANT REGISTRAR, ITAT, BANGALORE.