ROYAL NURSING HOME, MUMBAI V. ITO 11(3)(2), MUMBAI

ITA 3727/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49118 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 10-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALEXANDER CHANDY
• Keywords: Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI T. R. SOOD, AM I.T.A. NO.: 3727/MUM/2010 ASSESSMENT YEAR : 2006-07 M/S. ROYAL NURSING HOME RADHABAI NIWAS, JN. OF L.B. S. MARG & CST ROAD, KURLA, MUMBAI-400 070. PAN NO: AAFFR9760B VS. INCOME TAX OFFICER 11(3)(2) 4 TH FLOOR, AAYKAR BHAVAN, M. K. ROAD, MUMBAI-400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. GOPAL RESPONDENT BY : SHRI ALEXANDER CHANDY ORDER PER T.R. SOOD (AM) : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER DATED 25.03.2010 OF COMMISSIONER OF INCOME TAX (APPEALS)- 2, MUMBAI AND RELATES TO THE ASSESSMENT YEAR 2006-07. 2. IN THIS APPEAL VARIOUS GROUNDS HAVE BEEN RAISED BUT THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT IF GROUND NO. 1 IS C ONSIDERED THEN SAME WOULD BE SUFFICIENT. GROUND NO.1 READS AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CAS E AND IN LAW, THE LEARNED CIT(A) COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE VALIDITY OF THE NOTICE U/S. 143(2) WHICH WAS SERVED BEYOND THE TIME ALLOWED BY THE ACT. 3. AFTER HEARING BOTH THE PARTIES, WE FIND THAT IN THE ASSESSMENT ORDER IT IS CLEARLY MENTIONED IN THE FIRST PARA THAT NOTI CE U/S.143(2) WAS SERVED ON THE ASSESSEE ON 13.12.2007. WHEN THE ISSUE REGAR DING THE NOTICE BEING BEYOND THE LIMITATION WAS RAISED BEFORE THE LD. CIT (A), THE SAME WAS ADJUDICATED BY HIM VIDE PARA 24 TO 26 OF HIS ORDER. THE LD. CIT(A) REJECTED 2 THE CONTENTION OF THE ASSESSEE THAT THOUGH NOTICE H AS BEEN SERVED ON 13.12.2007, HOWEVER SINCE ASSESSEE HAD ALREADY APPE ARED BEFORE THE AO AND HAD ALSO NOT RAISED ANY OBJECTION THEN THIS OBJ ECTION COULD NOT BE RAISED PARTICULARLY IN VIEW OF THE NEWLY INSERTED S ECTION 292 BB. 4. BEFORE US THE LD. COUNSEL OF THE ASSESSEE REFERR ED TO THE SECTION 143(2) CLAUSE (II), ACCORDING TO WHICH NO NOTICE U/ S.143(2) COULD BE SERVED BEYOND THE PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH RETURN IS FURNISHED. WHILE REFERRING TO THE ASSESSMENT ORD ER, HE POINTED OUT THAT RETURN WAS FURNISHED IN THIS CASE ON 01.11.2006 WHI CH MEANS NOTICE COULD HAVE BEEN SERVED UPTO 30.11.2007, WHEREAS NOT ICE HAS BEEN SERVED ON 13.12.2007 WHICH IS BEYOND THE TIME LIMIT PRESCR IBED IN THE SECTION. HE FURTHER SUBMITTED THAT THE MERE APPEARANCE BEFORE T HE AO WOULD NOT MEAN THAT ASSESSEE CANNOT TAKE THIS ISSUE LATER ON. IN VARIOUS CASES IT HAS BEEN HELD THAT QUESTION OF SERVICE OF NOTICE CAN BE RAISED AT ANY POINT OF TIME. IT HAS BEEN HELD BY THE SPECIAL BENCH OF THE TRIBUANL IN CASE OF KUBER TOBACCO PRODUCT (P) LTD. VS. DCIT [117 ITD 27 3 (DEL)] THAT SECTION 292 BB HAD NO RETROSPECTIVE EFFECT. 5. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE R OF THE LD. CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND THAT UNDISPUTABLE NOTICE HAS BEEN SERVED ON ASSESSEE ON 13.12.2007. SECTION 143(2) AT RELEVANT POINT OF TIME READS AS UNDER :- PROVIDED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISHED. 7. FROM THE ABOVE IT IS CLEAR THAT NO NOTICE COULD BE SERVED AFTER THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH I N WHICH RETURN IS FILED. SINCE RETURN HAS BEEN FILED ON 01.11.2006, THE NOTI CE COULD HAVE BEEN SERVED UPTO 30.11.2007. WE FURTHER FOUND THAT THE L D. CIT(A) HAS OBSERVED THAT SINCE ASSESSEE HAS ALREADY APPEARED BEFORE THE AO AND HAS NOT TAKEN ANY OBJECTION, THEREFORE, THIS ISSUE COULD NOT BE R AISED AT APPELLATE STAGE. THIS IS NOT CORRECT BECAUSE ISSUE REGARDING SERVICE OF NOTICE CAN BE TAKEN 3 AT ANY STAGE. FURTHER THE LD. CIT(A) HAS RELIED ON THE PROVISIONS OF SECTION 292BB, BUT THE SAME HAVE BEEN HELD TO BE ONLY PROSP ECTIVE IN NATURE BY THE SPECIAL BENCH OF THE TRIBUNAL IN CASE OF KUBER TOBACCO PRODUCT (P) LTD. (SUPRA). 8. THEREFORE, WE ARE OF THE VIEW THAT IN THIS CASE NOTICE HAS BEEN SERVED BEYOND THE LIMITATION PROVIDED U/S.143(2) AND THUS ASSESSMENT IS TIME BARRED. 9. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED ON THIS 15 TH DAY OF JUNE, 2011. SD/- SD/- (D. MANMOHAN) (T. R. SOO D) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DT: 15/06/2011 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, D - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI