Sh. Mangat Trehan, Hoshiarpur V. The Deputy Commissioner of Income tax, Hoshiarpur

ITA 25/ASR/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7736 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-04-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 21-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LAXMAN SINGH
• Keywords: Reopening of assessment; Period of limitation; Time period of passing order; Reason to believe; Reassessment proceedings
• Section: 143(3); 147; 148; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.08(ASR)/2011 ASSESSMENT YEAR:2007-08 PAN:ACAPT2109H THE DY. C.I.T. VS. SH. MANGAT RAM, CONTRACTOR, HOSHIARPUR CIRCLE, TREHAN CONSTRUCTION, HOSHIARPUR. TANDA ROAD, HOSHIARPUR. (APPELLANT) (RESPONDENT) I.T.A. NO.25(ASR)/2011 ASSESSMENT YEAR:2007-08 PAN:ACAPT2109H SH. MANGAT RAM, CONTRACTOR, VS. THE DY. C.I.T. TREHAN CONSTRUCTION, HOSHIARPUR CIRCLE, TANDA ROAD, HOSHIARPUR. HOSHIARPUR. (APPELLANT) (RESPONDENT) DEPARTMENT BY: SH. LAXMAN SINGH, CIT(DR) ASSESSEE BY: SH. SURINDER MAHAJAN, CA DATE OF HEARING :24/04/2012 DATE OF PRONOUNCEMENT:26/04/2012 ORDER PER BENCH; THESE CROSS APPEALS ONE BY THE REVENUE AND ANOTH ER BY THE ASSESSEE ARISE FROM THE ORDER OF THE CIT(A), JALANDHAR, DATE D 28.10.2010 FOR THE ASSESSMENT YEAR 2007-08. ITA NOS 8 & 25(ASR)/2011 2 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL: 1. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN REDUCING THE ADDITION OF RS.25,00,450/- TO RS.9,13,060/- MADE BY THE AO ON A CCOUNT OF CASH DEPOSIT. 2. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN WORKING OUT OF EXPENSES AND INVESTMENT AT RS.45,42,823/- AS AGAINST RS.67,47,21 3/- WORKED OUT BY THE AO IN THE ASSESSMENT ORDER. 3. THAT, IT IS PRAYED THAT THE ORDER OF THE LD. CIT (A) BE SET-ASIDE AND THAT OF THE A.O. RESTORED. 4. THAT THE APPELLANT REQUESTS FOR LEAVE TO ADD OR AMEND OR ALTER THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AN D DISPOSED OFF. 3. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL: 1 A) THAT ON THE FACTS & CIRCUMSTANCES OF THE CASE , REASSESSMENT PROCEEDINGS INITIATED BY THE LD. AO BY ISSUE OF NOTICE U/S 148 OF THE ACT ARE ILLEGAL AND BAD IN LA W BECAUSE ASSESSMENT OF THE RETURN FILED ON 13.03.2008 WAS ST ILL PENDING AT THE TIME OF ISSUE OF NOTICE U/S 148 DATED 04.02. 2009 SINCE NOTICE U/S 143(2) OF THE ACT COULD HAVE BEEN ISSUED UPTO 31.03.2009. B) THAT NOTICE U/S 148 OF THE ACT IS ILLEGAL AND A S SUCH CONSEQUENT ASSESSMENT FRAMED IS ILLEGAL, BAD IN LAW AND VOID- AB-INITIO. 2. THAT WITHOUT PREJUDICE TO THE FACT THAT ALLEGED ASSESSMENT FRAMED BY THE LD. AO WITHOUT ASSUMPTION OF VALID J URISDICTION IS ILLEGAL AND VOID AB-INITIO SINCE NOTICE ISSUE U/ S 148 OF THE ACT IS ILLEGAL AND BAD IN LAW EVEN OTHERWISE: A) THAT ON THE FACTS & CIRCUMSTANCES OF THE CASE, LD. CIT(A), HAS GROSSLY ERRED IN CONFIRMING THE ADDITIO N OF ITA NOS 8 & 25(ASR)/2011 3 RS.11,31,004/- AS MADE BY THE AO BY APPLYING 12% ON CONTRACT RECEIPTS AS AGAINST 8% DECLARED BY THE ASSESSEE. AD DITION CONFIRMED IS ILLEGAL AND BAD IN LAW. B.1) THAT ON THE FACTS & CIRCUMSTANCES OF THE CASE , LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING ADDITION OF RS.15,97,347/- BY COMPUTING DIFFERENCE BETWEEN ALLE GED EXPENSES/INVESTMENTS WITH AVAILABILITY OF CASH BY E STIMATING EXPENSES AND INVESTMENTS AT RS.45,42,823/- AS AGAIN ST INCOME RECEIPTS CALCULATED AT RS.29,45,476/- THEREBY CONFI RMING ADDITION OF RS.15,97,347/-. ADDITION CONFIRMED IS I LLEGAL AND BAD IN LAW. B.2) THAT LD. CIT(A) WHILE CONFIRMING ADDITION OF RS.15,97,347/- HAS GROSSLY ERRED IN INCLUDING FOLLO WING EXPENSES/INVESTMENTS WHILE COMPUTING THE SAME WITH AVAILABILITY OF CASH: I) INCLUDING CASH DEPOSITED IN ORIENTAL BANK OF CO MMERECE AT RS.9,13,060/- AS AGAINST RS.1,27,700/-. II) INCLUDING INVESTMENT IN PLOT MADE IN THE YEAR 2001-02 AT RS.4,00,000/-. III) INCLUDING REPAYMENT OF CAR LOAN AT RS.5,73,76 3/- AS AGAINST RS.1,44,000/-. IV) INCLUDING RS.14,75,000/- INVESTMENT IN TREHAN AUTOS THOUGH THE SAME WAS TRANSFERRED FROM BANK ACCOUNT T HROUGH CHEQUES. V) INCLUDING RS.8,00,000/- FIXED DEPOSIT WITH JCT LTD. THOUGH THE SAME HAS BEEN ISSUED THROUGH FOUR CHEQUE S OF RS.2,00,000/- EACH DRAWN ON ALLAHABAD BANK. B.3) THAT ON THE FACTS & CIRCUMSTANCES OF THE CASE , LD. CIT(A) HAS GROSSLY ERRED IN NOT INCLUDING RS.6,00,0 00/- BEING SALE PROCEEDS OF CAR IN THE CASH AVAILABLE WITH THE ASSESSEE. C) THAT ON THE FACTS & CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS GROSSLY ERRED IN NOT ADMITTING ADDITIONA L GROUND OF APPEAL FILED BY THE ASSESSEE WHEREIN ASSESSEE HAS C HALLENGED ITA NOS 8 & 25(ASR)/2011 4 ADDITION OF RS.4,00,000/- ON ACCOUNT OF INVESTMENT IN PURCHASE OF PLOT MADE IN THE YEAR 2001-02. ADDITION CONFIRME D IS ILLEGAL AND BAD IN LAW. 3. THAT THE ASSESSEE REQUESTS FOR LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DIS POSED OFF. 4. THE ASSESSEE HAS RAISED GROUNDS 1(A) & 1(B) REFE RRED TO HEREINABOVE IN THE GROUNDS OF APPEAL AS ADDITIONAL GROUNDS. IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE, SH. SURINDER MAHAJAN, CA THAT INA DVERTENTLY THE ISSUE OF ILLEGALITY OF NOTICE U/S 148 OF THE ACT, COULD NOT BE CHALLENGED IN THE APPEAL FILED BEFORE THE LD. CIT(A) AND THE SAME BEING A LE GAL ISSUE GOES DEEP INTO THE ROOTS OF THE MATTER AND THEREFORE, IN VIEW OF T HE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT REPORTED IN 229 ITR 383, THE SAME MAY BE ADMITTED. 5. THE LD. DR, ON THE OTHER HAND, DID NOT HAVE ANY OBJECTION TO THE SAME. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ISSUE WITH REGARD TO ILLEGALITY OF NOTICE U/S 1 48 OF THE ACT BEING A LEGAL ISSUE AND IN VIEW OF THE DECISION OF THE HONBLE SU PREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT (SUPRA), THE SAME IS ADMITTED. 7. THE BRIEF FACTS OF THE CASE, AS STATED BY THE LD . COUNSEL FOR THE ASSESSEE ARE THAT THE ASSESSEE IS ENGAGED IN THE BU SINESS OF CIVIL CONSTRUCTION CONTRACTS. THE ASSESSEE DOES NOT MAINT AIN ANY BOOKS OF ITA NOS 8 & 25(ASR)/2011 5 ACCOUNT. THE INCOME HAS BEEN COMPUTED FROM TDS CERT IFICATES BY APPLYING 8% ON CONTRACT RECEIPTS AS DONE IN THE PAST. THE CA PITAL INVESTMENT MADE IN THE VENTURE WAS MADE BY TRANSFER THROUGH CHEQUES DR AWN ON ORIENTAL BANK OF COMMERCE AND A LOAN OF RS.4,00,000/- WAS TAKEN. THE RETURN WAS REVISED BY RECTIFYING THE OMISSION AND MISTAKE ON 13.03.200 8 DECLARING INCOME OF RS.14.23 LACS BY APPLYING 8% ON CONTRACT RECEIPTS O F RS.1,74,87,525/-. THE RETURN WAS PROCESSED ON 25.03.2008. PROCEEDINGS WER E INITIATED U/S 147 OF THE ACT ON 03.02.2009 AND NOTICE U/S 148 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 04.02.2009. THE AO FRAMED ASSESSMENT AT RS.67,71,213/- AS AGAINST RETURNED INCOME OF RS.14.23 LACS AND FOLLOW ING ADDITIONS WERE MADE: S.NO. PARTICULARS AMOUNT AMOUNT 1 ADDITION ON ACCOUNT OF CONTRACT RECEIPTS BY ESTIMATING 12% ON CONTRACT RECEIPTS AS AGAINST 8% DECLARED BY THE ASSESSEE. 11,31,004/- 2. ADDITION ON ACCOUNT OF CASH DEPOSITED WITH OBC, HOSHIARPUR. 25,00,450/- 3. ADDITION ON ACCOUNT OF LOAN RAISED 4,00,000/- 4. ADDITION ON ACCOUNT OF INVESTMENT IN NAVEEN TREHAN AUTO 14,75,000/- 5. ADDITION ON ACCOUNT OF INVESTMENT IN PURCHASE OF PLOT 4,00,000/- 6. ADDITION ON ACCOUNT OF RE-PAYMENT OF HOUSING LOAN. 96,000/- 7. ADDITION ON ACCOUNT OF REPAYMENT OF CAR LOAN 5,75,763/- ITA NOS 8 & 25(ASR)/2011 6 8. ADDITION ON ACCOUNT OF HOUSEHOLD EXPENSES 5,00,000/- 9. ADDITION ON ACCOUNT OF FD WITH JCT LTD. 8,00,000/- 67,47,213/- LESS: AVAILABILITY OF CASH AS PER INCOME DECLARED RS.13,99,000/- CONTRACT RECEIPTS ADDITION ON ACCOUNT OF CONTRACT RECEIPTS. RS.11,31,004/- 2530004 42,17,209/- TOTAL 53,48,213/- 8. THE LD. CIT(A), VIDE HIS ORDER DATED 28.10.2010 HAS DELETED THE FOLLOWING ADDITIONS: 1) ADDITION OF RS.15,87,390/- ON ACCOUNT OF CASH DE POSITED WITH ORIENTAL BANK OF COMMERCE. 2) ADDITION OF RS.4,00,000/- BEING LOAN RAISED. 3) ADDITION OF RS.2,15,000/- OUT OF HOUSEHOLD EXPEN SES. 8.1. THE LD. CIT(A), HOWEVER, CONFIRMED THE ADDITI ONS I.E. (I) ADDITION OF RS.11,31,004/- ON ACCOUNT OF CONTRACT RECEIPTS BY E STIMATING 12%, (II) ADDITION OF RS.15,97,347/- BY COMPUTING DIFFERENCE BETWEEN ALLEGED EXPENSES/INVESTMENTS WITH AVAILABILITY OF CASH I.E. ON ACCOUNT OF CASH DEPOSITS OF RS.9,13,060/-, INVESTMENT IN NAVEEN TR EHAN AUTOS LOAN RS.14.75 LACS, INVESTMENT IN PLOT RS.4,00,000/-, R EPAYMENT OF HOUSING LOAN RS.96,000/-, REPAYMENT OF CAR LOAN RS.5,75,763/-, F IXED DEPOSITS WITH JCT LTD. RS.8,00,000/- & HOUSEHOLD EXPENSES RS.5,00,000 /-. OUT OF THE SAME CASH AVAILABLE WAS COMPUTED BY THE LD. CIT(A) AT RS .29,45,476/- AND ITA NOS 8 & 25(ASR)/2011 7 ACCORDINGLY, THE BALANCE ADDITIONS WERE CONFIRMED A T RS.15,97,347/- AS AGAINST MADE BY THE AO AT RS.41,93,209/-. 9. THE LD. COUNSEL FOR THE ASSESSEE, MR. SURINDER M AHAJAN, CA, FIRST OF ALL ARGUED ON THE LEGAL ISSUE THAT THE RETURN OF IN COME WAS FILED ON 13.03.2008 WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT ON 25.03.2008. THE TIME AVAILABLE FOR ISSUE OF NOTICE U/S 143(2) OF THE ACT WAS UPTO 31.03.2009. THE AO ISSUED NOTICE UNDER SECTION 148 OF THE ACT ON 04.02.2009. IT WAS ARGUED THAT NOTICE U/S 148 OF TH E ACT CANNOT BE ISSUED WHEN TIME AVAILABLE FOR 143(2) OF THE ACT IS AVAILA BLE. NOTICE U/S 148 READ WITH SECTION 147 CAN BE ISSUED ONLY WHEN THE AO HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR AND HE MAY SUBJECT TO THE PROVISIONS OF SECTIO N 148 TO 153 ASSESS OR RE- ASSESS SUCH INCOME. THIS REOPENING OF ASSESSMENT B Y THE AO U/S 147 READ WITH SECTION 148 COMES INTO PLAY ONLY WHEN TIME REQ UIRED U/S 143(2) (II) HAD EXPIRED. THE PROVISIONS OF SECTION 147/148 CANNOT B E USED IN A ROUTINE AND CASUAL MANNER. THEREFORE, THE NOTICE ISSUED BY THE AO U/S 148 OF THE ACT IS BAD IN LAW AND THE ASSESSMENT WAS FRAMED U/S 147/14 3(3) OF THE ACT IS LIABLE TO BE QUASHED. ITA NOS 8 & 25(ASR)/2011 8 10. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED HIS ARGUMENTS ON MERIT ALSO THAT THE AO HAD ESTIMATED THE INCOME @ 12% OF THE CONTRACT RECEIPTS AS AGAINST 8% DECLARED BY THE ASSESSEE WITHOUT TAKING INTO CONSIDERATION THE PAST RESULTS OF THE COMPARABLE CASES. AS REGARDS AV AILABILITY OF CASH OF RS.15,97,347/-, IT WAS ARGUED THAT WHEN CONTRACT RE CEIPTS ARE NOT TAKEN AS CASH AVAILABLE THEN 92% OF THE EXPENSES SHOULD NOT BE TAKEN AS CASH DEPOSITED OUT OF CASH AVAILABLE. IT WAS ARGUED WIT H REGARD TO THE INVESTMENT OF RS.4,00,000/- IN THE PURCHASE OF PLOT DURING THE YEAR 2000-01, THE ASSESSEE SUBMITTED THE CONFIRMATION OF SH. RAJIV AG GARWAL THAT INVESTMENT HAD BEEN MADE DURING THE YEAR 2000-01 SUPPORTING TH E AFFIDAVIT OF SH. RAJIV AGGARWAL AND THE ADDITIONAL GROUND RAISED BEFORE TH E LD. CIT(A) HAD NOT BEEN CONSIDERED. AS REGARDS THE CASH LOAN, THE LD. CIT(A) HAS NOT APPRECIATED THAT CAR WAS SOLD FOR RS.6,00,000/-, WH ICH WAS MORTGAGED AND WHICH COULD BE SOLD AFTER CLEARING OUTSTANDING LOAN OF RS.3,91,763/-. AS REGARDS RS.14,75,000/- INCLUDED IN THE TOTAL VALUE OF INVESTMENT, IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT THE SAME HAS ALREADY BEEN INCLUDED N THE CASH FLOW STATEMENT AVAILABLE AT PAGES 9 & 10 O F THE CIT(A)S ORDER. AS REGARDS THE FIXED DEPOSIT WITH M/S. JCT LTD. AMOUNT ING TO RS.8,00,000/-, IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT THESE HAVE BEEN MADE OUT OF CONTRACT RECEIPTS FROM JCT LTD. A COPY OF BANK ACC OUNT WITH ALLAHABAD ITA NOS 8 & 25(ASR)/2011 9 BANK SHOWING RECEIPTS OF FOUR CHEQUES FOR RS.2 LAC EACH FROM JCT LTD. WAS FILED SUPPORTED WITH CERTIFICATE ISSUED BY JCT LTD . 11. THE LD. DR, ON THE OTHER HAND, INVITED OUR ATTE NTION TO SECTION 143(2) READ WITH PROVISO WHERE THE AMENDMENT WAS MADE BY T HE FINANCE ACT, 2008 W.E.F. 1.4.2008 WHERE IT HAS BEEN MENTIONED IN THE ACT THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER T HE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN I S FURNISHED. IN THE PRESENT CASE, NOTICE U/S 143(2) CAN BE ISSUED UPTO 30.09.20 08 AND THEREAFTER THE NOTICE U/S 148 CAN BE ISSUED AND THE AO ISSUED NOTI CE ON 04.02.2009 WELL AFTER THE LIMITATION PERIOD AS PROVIDED UNDER SECTI ON 143(2) OF THE ACT EXPIRED. AS REGARDS THE MERITS OF THE CASE, THE LD. CIT(A) RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. AS REGARDS LEGAL GROUNDS OF THE ASSESSEE, THERE IS NO DISPUTE TO THE FACT THAT THE RETURN OF THE ASSESSEE WAS FILED ON 13.03.2008 AND NOTICE UNDER SECTION 148 WAS ISSUED ON 04.02.2009 FOR THE ASSESSMENT YEA R 2007-08. NOW THE ISSUE BEFORE US IS WHETHER NOTICE U/S 148 OF THE AC T COULD VALIDLY BE ISSUED AND THERE WAS SUFFICIENT TIME TO ISSUE NOTICE BY T HE AO U/S 143(2) OF THE ACT. PRIOR TO SUBSTITUTION BY THE FINANCE ACT, 2008 W.E.F. 01.04.2008, ITA NOS 8 & 25(ASR)/2011 10 PROVISO TO SECTION 143(2)(II), AS AMENDED BY FINANC E ACT, 2003 W.E.F. 01.06.2003 WAS THAT NO NOTICE UNDER CLAUSE (II) SHA LL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISHED. ON THE SUBSTITUTION BY THE FINANCE ACT, 2008 W.E.F. 01.04.2008, THERE WAS AMENDMENT IN THE PROVISO TO S ECTION 143(2)(II) WHERE IT WAS SUBSTITUTED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE E ND OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. AS ON THE DATE OF FI LING OF THE RETURN I.E. 13.03.2008, THE LAW PREVAILED AS CONTAINED IN PROV ISO TO SECTION 143(2)(II) THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED O N THE ASSESSEE AFTER THE EXPIRY OF 12 MONTHS FROM THE END OF THE MONTH IN WH ICH THE RETURN IS FURNISHED. THEREFORE, AS PER THE SAID LAW, THE LIMI TATION FOR ISSUANCE OF NOTICE U/S 143(2) OF THE ACT IS UP TO 31.03.2009. THE LIMI TATION LAW IS PERSPECTIVE AS IT DOES NOT REVIVE THE ACTION WHICH MAY HAVE BEC OME TIME BARRED ON THE DATE OF ENFORCEMENT OF CHANGED LAW NOR THE CHANGED LAW EXTINGUISHED THE SUBSEQUENT CAUSE OF ACTION. THESE ARE DULY SUPPORTED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF S.S. GADGIL VS . LAL AND CO. REPORTED IN (1964) 53 ITR 231. THEREFORE, THERE IS NO DISP UTE TO THE SAID PROPOSTION. IN THE PRESENT CASE, THE AO HAD NOT ISS UED ANY NOTICE U/S 143(2) OF THE ACT. THE AO CANNOT ACQUIRE TWO JURISDICTIONS TO ISSUE NOTICE U/S 148 ITA NOS 8 & 25(ASR)/2011 11 AS WELL AS U/S 143(2) OF THE ACT, ESPECIALLY WHEN T HERE IS A TIME LEFT FOR ISSUING NOTICE U/S 143(2) OF THE ACT WITH RESPECT T O THE ORIGINAL RETURN FILED BY THE ASSESSEE ON 13.03.2008 THE JURISDICTION U/S 147 CAN BE ACQUIRED ONLY AFTER THE LIMITATION TO ISSUE NOTICE U/S 143(2) HAD EXPIRED. SECTION 147/148 COMES INTO PLAY ONLY WHEN THE AO HAS REASON TO BELI EVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY AS SESSMENT YEAR THEN HE MAY SUBJECT TO THE PROVISIONS OF SECTION 148 TO 153 OF THE ACT, ASSESS OR RE- ASSESS SUCH INCOME, WHICH HAS ESCAPED ASSESSMENT. IN SECTION 147 OF THE ACT ONLY ESCAPED INCOME CAN BE ASSESSED OR RE-ASSES SED. WHEREAS IN SECTION 143(2)(II) READ WITH SECTION 143(3) OF THE ACT, THE NOTICE CAN BE ISSUED IF THE AO CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE T HAT THE ASSESSEE HAS NOT UNDER-STATED THE INCOME OR HAS NOT COMPUTED EXCESS IVE LOSS OR HAS NOT UNDER-PAID THE TAX IN ANY MANNER THEN A NOTICE CAN BE SERVED AS WITHIN TIME PROVIDED IN PROVISO TO THE SAID SECTION. THE ASSESS MENT HAS TO BE MADE AFTER HEARING SUCH EVIDENCE AS THE ASSESSEE MAY PRODUCE A ND SUCH OTHER EVIDENCE AS THE AO MAY REQUIRE ON SPECIFIED POINTS AND AFT ER TAKING INTO ACCOUNT ALL RELEVANT MATERIAL WHICH HE HAS GATHERED, THE AO SHA LL, BY AN ORDER IN WRITING, MAKE AN ASSESSMENT OF THE TOTAL INCOME OR LOSS OF THE ASSESSEE AND DETERMINE THE SUM PAYABLE BY HIM OR REFUND OF ANY A MOUNT DUE TO HIM ON THE BASIS OF SUCH ASSESSMENT. THEREFORE, BOTH THE ASSES SMENTS ARE DIFFERENT ASSESSMENTS AND ITA NOS 8 & 25(ASR)/2011 12 HAVE DIFFERENT BASIS, AS MENTIONED HEREINABOVE. THE RE IS NO DISPUTE TO THE FACT THAT THE LAW APPLICABLE ON THE DATE OF FILING OF RETURN OF INCOME IS APPLICABLE, AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ONKAR SARAN AND SONS , 195 ITR 1 (SC). IT IS ALSO NOT A CASE OF APPLICABILITY OF SECTION 292B B IN VIEW OF THE DECISION OF ITAT DELHI BENCH (SPECIAL BENCH), IN THE CASE OF KU BER TOBACCO PRODUCTS (P) LTD. VS. DY. COMMR. OF INCOME-TAX, CO. CIRCLE 5(1), NEW DELHI, (2009) 117 ITD 273, IN WHICH IT HAS BEEN HELD THAT SECTION 292BB OF THE ACT, CANNOT BE CONSTRUED BY THE RETROSPECTIVE OPERATION AND IT HAS TO BE APPLIED PROSPECTIVELY. CONSEQUENTLY, UPTO 31.03.2008, THE A SSESSEE IS NOT PRECLUDED FROM TAKING ANY OBJECTION REGARDING INVALIDITY OF AN ASSESSMENT ETC. ON THE GROUND OF INVALID ISSUANCE/SERVICE OF NOTICE IN AP PELLATE PROCEEDINGS. BUT THE ASSESSEE IS PRECLUDED FROM ALL THE DOINGS FOR A ND FROM ASSESSMENT YEAR 2008-09. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ARGUMENT MADE BY THE LD. DR CANNOT HELP THE REVENUE. IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE NOTICE ISSUED BY THE AO U/ S 148 OF THE ACT AS MENTIONED HEREINABOVE IS BAD IN LAW AND, THEREFORE , THE ASSESSMENT IS DIRECTED TO BE QUASHED. THUS, GROUND NOS. 1(A) & 1( B) OF THE ASSESSEE BEING ADDITIONAL GROUNDS ARE ALLOWED. ITA NOS 8 & 25(ASR)/2011 13 13. AS REGARDS OTHER GROUNDS ON MERITS ARE NOT CONS IDERED FOR DECISION IN VIEW OF OUR DECISION HEREINABOVE. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. 14 IN THE RESULT, THE APPEAL THE ASSESSEE IN ITA NO.25(ASR)/2011 IS ALLOWED AND THE APPEAL OF THE REVENUE IN ITA NO.8(A SR)/2011 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH APRIL, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26TH APRIL, 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE:SH. MANGAT RAM CONTRACTOR, HOSHIARPUR 2. THE DY. CIT, HOSHIARPUR 3. THE CIT(A), 4. THE CIT, 5. THE SR DR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.