Amiti Software Technologies Pvt. Ltd., Bangalore V. ITO, Bangalore

ITA 540/BANG/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73381 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-01-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 18-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BIJOY KUMAR
• Assessee Lawyers: H N KHINCHA
• Keywords: Reasonable cause; Revised return
• Section: 115JB; 139(5); 10B; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER ITA NO.540/BANG/2012 ASSESSMENT YEAR : 2008-09 M/S. AMITI SOFTWARE TECHNOLOGIES PVT. LTD., NO.68, 2 ND FLOOR, 4 TH CROSS, PANDURANGANAGAR, OFF. BANNERGHATTA ROAD, BANGALORE 560 076. PAN : AAECA 2799K VS. THE INCOME TAX OFFICER, WARD 11(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI H.N. KHINCHA, C.A. RESPONDENT BY : SHRI BIJOY KUMAR PANDA, ADDL.CIT(DR) DATE OF HEARING : 29.01.2014 DATE OF PRONOUNCEMENT : 07.02.2014 O R D E R PER N.V. VASUDEVAN, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 05.01.2012 OF THE CIT(APPEALS)-I, BANGALORE RELATING TO ASSESSMEN T YEAR 2008-09. ITA NO.540/BANG/2012 PAGE 2 OF 11 2. THERE IS A DELAY OF ABOUT 17 DAYS IN FILING THE APPEAL BY THE ASSESSEE. IN THE PETITION FOR CONDONING DELAY IN F ILING THE APPEAL, IT HAS BEEN SUBMITTED THAT ONE MR.K.N.SHIVKUMAR, WHO WAS H ANDLING THE ASSESSEES TAX MATTER UNDERWENT A SURGERY AND WAS D ISCHARGED FROM THE HOSPITAL ON 28.2.2012. HE JOINED DUTY ONLY ON 3.4 .2012 AFTER COMPLETE RECOVERY. THE DISCHARGE SUMMARY OF THE HOSPITAL HA S BEEN FILED ALONG WITH THE APPLICATION FOR CONDONING DELAY. THOUGH THE LE ARNED DR OPPOSED THE PRAYER FOR CONDONING THE DELAY IN FILING THE APPEAL , WE ARE OF THE VIEW THAT THE DELAY IN FILING THE APPEAL HAS OCCURRED OWING T O SUFFICIENT AND REASONABLE CAUSE. THE DELAY IN FILING THE APPEAL I S THEREFORE CONDONED. 3. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINES S OF COMPUTER SOFTWARE DEVELOPMENT AND EXPORT. THE ASSESSEE COMP ANY FILED ITS RETURN FOR A.Y. 2008-09 ON 01.10.2008 DECLARING A TOTAL LO SS OF RS.16,15,127 AND ALSO CLAIMING DEDUCTION U/S. 10A AMOUNTING TO RS.1, 54,83,511. THE ASSESSEE ALSO COMPUTED TAX PAYABLE UNDER MAT U/S. 1 15 JB ON THE TOTAL PROFITS OF RS.1,38,76,848. THE RETURN OF INCOME WA S PROCESSED U/S. 143(1) OF THE ACT ON 27.08.2009 AND IT RESULTED IN A DEMAN D OF RS.2,05,710. 4. THE RETURN FILED BY THE ASSESSEE ON 01.10.08 WAS BEYOND THE PERIOD PRESCRIBED U/S. 139(1) OF THE ACT. THE ASSESSEE FI LED A REVISED RETURN ON 30.09.2009 IN WHICH INCOME FROM BUSINESS WAS CLAIME D AS NIL AFTER CLAIMING EXEMPTION U/S. 10B OF THE ACT ON PROFITS O F RS.1,53,83,511. THE REVISED RETURN WAS TREATED A NON EST BY THE AO SINCE THE ORIGINAL RETURN HAD ITA NO.540/BANG/2012 PAGE 3 OF 11 NOT BEEN FILED WITHIN DUE DATE AS PROVIDED U/S. 139 (1) OF THE ACT. IN THIS REGARD REFERENCE MAY BE MADE TO SEC.139(5) OF THE A CT WHICH PROVIDES AS FOLLOWS: (5) IF ANY PERSON, HAVING FURNISHED A RETURN UNDER SUB-SECTION (1), OR IN PURSUANCE OF A NOTICE ISSUED UNDER SUB-SECTION ( 1) OF SECTION 142, DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THERE IN, HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE EXP IRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEF ORE THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER : 5. IT IS NOT IN DISPUTE THAT A NOTICE DATED 19.08.2 010 U/S. 143(2) OF THE ACT WAS ISSUED BY THE AO AND SERVED ON THE ASSESSEE . IT IS ALSO NOT IN DISPUTE THAT THIS IS THE ONLY NOTICE ISSUED U/S. 14 3(2) OF THE ACT ISSUED BY THE AO BEFORE COMPLETING THE ASSESSMENT PROCEEDINGS U/S.143(3) OF THE ACT. THE ASSESSEE HAS NOT DISPUTED HAVING RECEIVED THIS NOTICE U/S. 143(2) OF THE ACT. 6. IN THE ASSESSMENT PROCEEDINGS THE AO DID NOT ALL OW THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.10A OF THE ACT. THE AO REFERRED TO THE PROVISO U/S. 10A(1A) OF THE ACT WHICH PROVIDES THAT NO DEDU CTION U/S. 10A OF THE ACT SHALL BE ALLOWED TO AN ASSESSEE, WHO DOES NOT FURNI SH RETURN OF INCOME ON OR BEFORE THE DUE DATE SPECIFIED U/S. 139(1) OF THE ACT. DEDUCTION U/S. 10A OF THE ACT WAS THEREFORE NOT ALLOWED BY THE AO. TH E TOTAL INCOME OF THE ASSESSEE WAS THEREFORE COMPUTED BY THE AO UNDER THE NORMAL PROVISIONS OF THE ACT AND NOT U/S. 115JB OF THE ACT. BOTH IN THE ORIGINAL AS WELL AS THE ITA NO.540/BANG/2012 PAGE 4 OF 11 REVISED RETURNS, THE ASSESSEE HAD COMPUTED TAX PAYA BLE U/S. 115JB OF THE ACT ON BOOK PROFITS. 7. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE F ILED APPEAL BEFORE THE CIT(APPEALS). BEFORE THE CIT(A), THE ASSESSEE RAISED A SPECIFIC PLEA THAT NOTICE U/S. 143(2) OF THE ACT HAS NOT BEEN ISS UED WITHIN THE TIME PERMITTED UNDER THE PROVISO TO SECTION 143(2) OF TH E ACT VIZ., SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RET URN IS FURNISHED. IN THE PRESENT CASE, AS WE HAVE ALREADY SEEN, THE ASSESSEE FILED ORIGINAL RETURN OF INCOME ON 01.10.2008 U/S. 139 OF THE ACT. THAT WAS , HOWEVER, NOT WITHIN THE TIME SPECIFIED U/S. 139(1) OF THE ACT. THE REV ISED RETURN FILED BY THE ASSESSEE ON 30.09.2009 WAS TREATED AS NON EST BY THE AO AS THE ORIGINAL RETURN WHICH WAS SOUGHT TO BE REVISED HAD NOT BEEN FILED ON OR BEFORE THE DUE DATE SPECIFIED U/S. 139(1) OF THE ACT. THE TIM E LIMIT U/S. 143(2) OF THE ACT WOULD THEREFORE BE SIX MONTHS FROM THE END OF T HE FINANCIAL YEAR IN WHICH THE RETURN OF INCOME WAS FILED VIZ., 1.10.200 8 AND THAT PERIOD WOULD EXPIRE ON 30.09.2009. WE HAVE ALREADY SEEN THAT TH E NOTICE U/S. 143(2) OF THE ACT WAS DATED 19.08.2010 AND SERVED ON THE ASSE SSEE THEREAFTER. 8. THE ASSESSEE THEREFORE RAISED A PLEA BEFORE THE CIT(A) THAT THE ORDER OF ASSESSMENT REQUIRES TO BE ANNULLED FOR THE REASON THAT NO NOTICE U/S. 143(2) OF THE ACT HAD BEEN ISSUED AND SERVED W ITHIN THE PERIOD CONTEMPLATED UNDER PROVISO TO SECTION 143(2)(II) OF THE ACT. THE CIT(A) DID NOT AGREE WITH THE SUBMISSIONS OF THE ASSESSEE AND HE HELD AS FOLLOWS:- ITA NO.540/BANG/2012 PAGE 5 OF 11 5.1 I HAVE CONSIDERED THE ABOVE. SUCH ISSUE HAS NOT BEEN RAISED BEFORE AO, RATHER ALL THE NOTICES ISSUED BY THE AO HAD BEEN RESPONDED PROMPTLY BY ATTENDING ALL FIXED DATE S OF HEARING. ONCE PARTICIPATION HAS BEEN MADE IN THE ASSESSMENT PROCEEDING, HERE I WILL QUALITY THE WORD PARTICIPATION WITH ACT IVE AND PROMPT AND OBJECTING TO ALL PROPOSALS OF AO AND ALSO CONSI DERED BY THE AO; THE APPELLANT HAS NO LEGS TO STAND NOW AND PLEA D THAT THE ASSESSMENT IS TIME BARRED BECAUSE IT HAD BEEN ISSUE D BEYOND THE TIME LIMIT OF ORIGINAL RETURN FILED ON 01.10.2008. IN SHORT, NON- RAISING OF THE ISSUE OF TIME BAR BEFORE THE A.O. AN D ACTIVE PARTICIPATION IN THE ASSESSMENT PROCEEDINGS PROVES THAT ASSESSEE IS NOT AN AGGRIEVED ONE TO RAISE SUCH ISSUE AT APPE LLATE FORUM. THEREFORE, THE ABOVE THE GROUNDS OF APPEAL ARE DISM ISSED. 9. AGGRIEVED BY THE ORDER OF THE CIT(APPEALS), THE ASSESSEE HAS RAISED, AMONGST OTHER GROUNDS, GROUNDS NO.3.1 & 3.2 WHICH READ AS FOLLOWS:- 3.1 THE NOTICE ISSUED U/S. 143(2) OF THE I.T. ACT, IS BARRED BY LIMITATION THEREBY ALL THE CONSEQUENTIAL PROCEEDING S BAD IN LAW AND THE ORDER BASED ON SUCH NOTICE IS LIABLE TO BE QUASHED. 3.2 THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN CONFIRMING THE VALIDITY OF THE NOTICE/ASSE SSMENT ON THE GROUND THAT THE APPELLANT HAS NOT RAISED ANY OBJECT IONS DURING ASSESSMENT PROCEEDINGS AND COMPLIED WITH THE NOTICE S ISSUED. THE REASONING OF THE COMMISSIONER OF INCOME TAX (AP PEALS) BEING AGAINST THE PROVISIONS OF LAW IS TO BE DISREG ARDED AND ASSESSMENT ORDER PASSED IS TO BE QUASHED. 10. IF THE AFORESAID GROUNDS ARE DECIDED IN FAVOUR OF THE ASSESSEE, THEN THE OTHER ISSUES RAISED BY THE ASSESSEE IN ITS APPE AL DO NOT REQUIRE ANY CONSIDERATION AS THE ORDER OF ASSESSMENT HAS TO BE HELD TO BE INVALID AND ANNULLED. ITA NO.540/BANG/2012 PAGE 6 OF 11 11. WE HAVE HEARD THE SUBMISSIONS OF THE LD. DR AND THE LD. COUNSEL FOR THE ASSESSEE ON THE GROUNDS NO.3.1 & 3.2 REFERRED T O ABOVE. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF THE HONBLE SUPREME COURT JUDGMENT IN THE CASE OF KUMAR JAGADISH CHANDRA SINHA THROUGH LRS V. CIT, 220 ITR 67 (SC) WHEREIN THE HONBLE SUPREME COURT LAID DOWN THAT A REVISED RETURN COULD BE FILED ONLY IF AN ASSESSEE HAS FURNISHED A RETURN OF INCOME WITHIN TH E DUE DATE PRESCRIBED U/S. 139(1) OF THE ACT. AS SUCH REVISED RETURN IS NOT VALID IN LAW AND COULD NOT HAVE BEEN TREATED AND ACTED UPON AS REVISED RET URN CONTEMPLATED U/S. 139(5) OF THE ACT. IT WAS THEREFORE SUBMITTED BY H IM THAT THE ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE ON 01.10.2008 OUGHT TO HAVE BEEN THE RETURN WHICH SHOULD HAVE BEEN TAKEN UP FOR SCRUTINY BY THE AO. THEREFORE, THE TIME LIMIT FOR ISSUANCE OF NOTICE U/S. 143(2) O F THE ACT SHOULD BE RECKONED FROM 01.10.2008. THE TIME LIMIT FOR ISSUE OF A NOTICE U/S. 143(2) OF THE ACT SHOULD THUS BE 30.09.2009. NOTICE U/S. 143(2) IN THE PRESENT CASE WAS DATED 19.08.2010 AND HAD BEEN DULY SERVED ON THE ASSESSEE. IT WAS HIS SUBMISSION THAT THE NOTICE U/S. 143(2) NOT HAVING BEEN SERVED ON THE ASSESSEE WITHIN THE TIME LIMIT CONTEMPLATED UND ER THE PROVISO TO SECTION 143(2)(II) OF THE ACT, THE ENTIRE REASSESSM ENT PROCEEDINGS WILL HAVE TO BE HELD TO BE INVALID AND ORDER OF ASSESSMENT AN NULLED. IN THIS REGARD, RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS:- - MANISH PRAKASH GUPTA V. CIT, 259 CTR 57 (ALL) ITA NO.540/BANG/2012 PAGE 7 OF 11 - CIT V. PARIKALPANA ESTATE DEVELOPMENT (P.) LTD., (2 012) 79 DTR 246 (ALL) - CIT V. CEBON INDIA LTD., 347 ITR 583 (P&H) 12. IT WAS FURTHER SUBMITTED THAT IN THE AFORESAID DECISIONS, IT HAS ALSO BEEN HELD THAT IN THE ABSENCE OF A NOTICE U/S. 143( 2) OF THE ACT, THE PROVISIONS OF SECTION 292BB OF THE ACT CANNOT BE RE LIED UPON BY THE REVENUE. IT WAS THEREFORE HIS SUBMISSION THAT THE ORDER OF ASSESSMENT SHOULD BE HELD TO BE BAD IN LAW AND ANNULLED. 13. THE LD. DR, ON THE OTHER HAND, WHILE RELYING ON THE ORDER OF THE CIT(APPEALS), FURTHER PLACED RELIANCE ON THE PROVIS IONS OF SECTION 292B AND 292BB OF THE ACT AND SUBMITTED THAT THE ASSESSEE HA VING PARTICIPATED IN THE ASSESSMENT PROCEEDINGS, CANNOT AT THE APPELLATE STAGE RAISE A PLEA REGARDING NON-SERVICE OF NOTICE. HE ALSO PLACED RE LIANCE ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF AREVA T&D INDIA LTD. V. ACIT, 294 ITR 233 (MAD) , WHEREIN IT WAS HELD THAT NON-ISSUANCE OF NOTICE U/S. 143(2) WHICH IS A MERE PROCEDURAL IRREG ULARITY, WILL NOT MAKE THE ORDER OF REASSESSMENT A NULLITY. FURTHER RELIANCE WAS ALSO PLACED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF ITO V. VARIA PRATIK ENGINEERING, 120 TTJ 1 (AHD) , WHEREIN IT WAS HELD THAT PROVISIONS OF SECTION 29 2BB ARE APPLICABLE IN ALL PENDING PROCEEDINGS AFTER 31. 03.2008. WE MAY OBSERVE THAT IN THE PRESENT CASE THE ASSESSMENT YEA R IS 2008-09 AND ITA NO.540/BANG/2012 PAGE 8 OF 11 THEREFORE THE PROVISIONS OF SECTION 292BB WOULD BE APPLICABLE, AS THOSE PROVISIONS CAME INTO EFFECT FROM 01.04.2008. 14. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RI VAL SUBMISSIONS. THE ADMITTED FACTUAL POSITION IS THAT THE NOTICE U/S. 1 43(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 WA S FILED BY THE ASSESSEE, AS LAID DOWN IN PROVISO TO SECTION 143(2)(II) OF TH E 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 I S 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 WH ICH IS INCONSEQUENTIAL. REFERENCE MAY BE MADE TO THE DECISION OF THE HONBL E 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 HONBLE MADRAS HIGH COURT, IN OUR VIEW, CANN OT BE FOLLOWED AS THE DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSE SSEE OF HONBLE PUNJAB & HARYANA HIGH COURT AND ALLAHABAD HIGH COURT ALSO TO OK THE VIEW THAT NON- ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT RENDERS A SSESSMENT ORDER INVALID. ADMITTEDLY, NOTICE U/S. 143(2) OF THE ACT NOT HAVIN G BEEN SERVED ON THE ASSESSEE WITHIN THE PERIOD CONTEMPLATED UNDER LAW, THE ORDER OF ASSESSMENT HAS TO BE HELD TO BE INVALID AND ANNULLE D. ITA NO.540/BANG/2012 PAGE 9 OF 11 15. THE LD. DR HAS, HOWEVER, PLACED RELIANCE ON THE PROVISIONS OF SECTIONS 292B & 292BB OF THE ACT. THE AFORESAID PR OVISIONS READ AS FOLLOWS:- 292B RETURN OF INCOME, ETC., NOT TO BE INVALID ON CERTAI N GROUNDS NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDINGS, FURNISHED OR MADE OR ISSUED OR TAKEN O R PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUA NCE 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 PROCEE DING IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OT HER PROCEEDING IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCOR DING TO THE INTENT AND PURPOSE OF THIS ACT. 292BB NOTICE 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 REASSESSME NT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVE D UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND S UCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDI NG 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 SHA LL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE C OMPLETION 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 PRES ENT CASE WILL FALL WITHIN ANY MISTAKE, DEFECT OR OMISSION WHICH IS IN SUBSTAN CE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURP OSE OF THIS ACT. THE ITA NO.540/BANG/2012 PAGE 10 OF 11 REQUIREMENT OF GIVING OF NOTICE BECAUSE COMPLETION OF THE ASSESSMENT PROCEEDINGS CANNOT BE DISPENSED WITH BY TAKING RECO URSE TO THE PROVISIONS OF SEC.292B OF THE ACT. AS FAR AS PROVISIONS OF SE CTION 292BB IS CONCERNED, AS LAID DOWN IN THE DECISIONS OF THE ALL AHABAD HIGH COURT IN THE CASE OF MANISH PRAKASH GUPTA (SUPRA) & PARIKALPANA ESTATE DEVELOPMENT (P) LTD. (SUPRA) AND HONBLE 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 RE GARD TO ISSUE AND SERVICE OF NOTICE U/S. 143(2) OF THE ACT, AS ADMITTEDLY THE RE WAS ONLY ONE NOTICE U/S. 143(2) DATED 19.08.2010 ISSUED AND SERVED ON THE AS SESSEE BEFORE COMPLETION OF THE ASSESSMENT PROCEEDINGS. THE QUES TION IS AS TO, WHETHER THE SAID NOTICE WAS ISSUED AND SERVED WITHIN THE TI ME 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 P ROOF. THE PRESUMPTION IF REBUTTABLE. THE PROVISIONS OF SECTION 292BB CANNOT EXTEND TO A CASE WHERE THE QUESTION OF LIMITATION IS RAISED ON ADMIT TED 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. 17. IN LIGHT OF THE DISCUSSION AS AFORESAID, WE HOL D THAT THE ASSESSMENT PROCEEDINGS ARE INVALID FOR THE REASON THAT THE NOT ICE U/S. 143(2) OF THE ACT ITA NO.540/BANG/2012 PAGE 11 OF 11 HAD NOT BEEN ISSUED AND SERVED WITHIN THE TIME LIMI T PRESCRIBED BY THOSE PROVISIONS. THE ORDER OF ASSESSMENT IS ACCORDINGLY ANNULLED. 18. IN VIEW OF THE ABOVE CONCLUSION, THE OTHER ISSU ES RAISED BY THE ASSESSEE IN THE APPEAL ARE NOT TAKEN UP FOR CONSIDE RATION. 19. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON THIS 7 TH DAY OF FEBRUARY , 2014 . SD/- SD/- ( JASON P. BOAZ ) ( N.V. VASUDEVA N ) ACCOUNTANT MEMBER JUDICIAL MEMBE R BANGALORE, DATED, THE 7 TH FEBRUARY , 2014 . /D S/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.