NILJAY N. PATEL, MUMBAI V. ITO 25(10(4), MUMBAI

ITA 5915/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79575 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-02-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 27-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOURYA PRATAP
• Assessee Lawyers: H N MOTIWALLA
• Keywords: Income from undisclosed sources; Retrospective amendment; Validity of assessment; Reassessment proceedings
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.5915/MUM/2010, A.Y. 2007-08 SHRI NILAY N. PATEL, C/O.H.N.MOTIWALLA & CO., 508, SHARDA CHAMBERS, 33, NEW MARINES LINES, MUMBAI 400 020 PAN:ACQPP 2415F (APPELLANT ) VS. INCOME TAX OFFICER 25(1)(4), MUMBAI (RESPONDENT) APPELLANT BY : SHRI H.N.MOTIWALLA RESPONDENT BY : SHRI MO URYA PRATAP DATE OF HEARING : 07/07/2014 DATE OF PRONOUNCEMENT : 31 /07/2014 ORDER PER I.P.BANSAL, J.M, THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-35, MUMBAI DATED 24/06/2010 FO R ASSESSMENT YEAR 2007- 08. GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 35, MUMBAI ERR ED IN CONFIRMING THE ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 AS VALID ORDER, ON THE GROUND THAT THE APPELLANT HAD FILED THE RETURN OF INCOME FOR TH E ASSESSMENT YEAR 2007/08 ON APRIL 01 2008, PARTICULARLY WHEN THE NOTICE UNDER S ECTION 143(2) WAS ISSUED ONLY ON AUGUST 12, 2009, WITHOUT APPRECIATING THAT THE PROV ISO TO SECTION 143(3)(II) AS SUBSTITUTED BY THE FINANCE ACT, 2008 IS EFFECTIVE FROM THE ASSESSMENT YEAR 2008/09 AS HELD BY THE SPECIAL BENCH IN KUBER TOBAC CO PRODUCTS PVT. LTD. VS. DCIT [28 SOT 292(SB) (DEL)]. ITA NO.5915/MUM/2010, A.Y. 2007-08 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE SAID LEARNED COMMISSIONER OF INCOME TAX HAS ALSO ERRED IN NOT APPRECIATING TH E RATIO LAID DOWN IN THE FOLLOWING DECISIONS: (A) ACIT & OTHERS VS. HOTEL BLUE MOON (321 ITR 362 (SC) ] (B) KUBER TOBACCO PRODUCTS PVT. LTD., VS. DCIT [28 SOT 292 (SB)(DEL)] 2. THE RETURN OF INCOME IN THE PRESENT CASE WAS FIL ED ON 09/04/2008 I.E. AFTER THE END OF THE ASSESSMENT YEAR RELEVANT TO FINANCIA L YEAR 2006-07 AT AN INCOME OF RS.91,520/-. THE RETURN WAS PROCESSED UNDER SECTIO N 143(1) OF THE INCOME TAX ACT, 1961 (THE ACT) AND SUBSEQUENTLY NOTICE UNDER S ECTION 143(2) WAS ISSUED AND SERVED ON ASSESSEE ON 12/08/2009. DURING THE COURS E OF ASSESSMENT PROCEEDINGS THE ASSESSEE DID NOT FULLY COMPLY WITH THE VARIOUS NOTICES ISSUED BY THE AO AND ALSO DID NOT PRODUCE EVIDENCE REQUIRED T O BE PRODUCED. THE AO OBTAINED COPY OF BANK STATEMENT FROM THE BANK WHERE THE ASSESSEE WAS MAINTAINING BANK ACCOUNT. ON THE BASIS OF ALL THE SE FACTS THE FOLLOWING ADDITIONS WERE MADE TO THE INCOME OF THE ASSESSEE APART FROM DISALLOWANCE OF EXPENSES DEBITED TO P&L ACCOUNT AMOUNTING TO RS.77,781/-. II. INCOME FROM OTHER SOURCES: I) INCOME FROM UNDISCLOSED SOURCE TOWARDS CASH DEPOSITS. RS. 19,42,450/- II)INCOME FROM UNDISCLOSED SOURCE TOWARDS CHEQUE DEPOSITS RS. 7,63,700/- III)INCOME FROM UNDISCLOSED SOURCES TOWARD UNPROVED UNSECURED LOANS RS. 12,15,580/- TOTAL : RS. 39,21 ,730 ========== ===== 2.1 AFTER GRANTING THE DEDUCTION OF RS.21,328/- THE INCOME WAS ASSESSED AT A SUM OF RS.41,63,240/-. AN APPEAL WAS FILED AGAINST THE ASSESSMENT ORDER WHEREIN APART FROM CHALLENGING THE VALIDITY OF REAS SESSMENT PROCEEDINGS, AFOREMENTIONED ADDITIONS WERE ALSO CHALLENGED. HOW EVER, BEFORE LD. CIT(A) THE ASSESSEE PRESSED ONLY THE GROUND RELATING TO VALIDI TY OF REASSESSMENT AND OTHER GROUNDS RELATING TO ADDITIONS WERE NOT PRESSED AND SUCH GROUNDS HAVE BEEN DISMISSED BY LD. CIT(A) AS WITHDRAWN AS PER FOLLOWI NG OBSERVATIONS: ITA NO.5915/MUM/2010, A.Y. 2007-08 3 4. EVEN THOUGH VARIOUS OTHER GROUNDS HAVE BEEN RA ISED IN THE APPEAL FILED, THE REPRESENTATIVE CONFINED HIS ARGUMENTS ONLY TO THE I SSUE OF VALIDITY OF ASSESSMENT AT THE TIME OF HEARING. HE ACCEPTED THAT THE APPEAL C OULD BE DECIDED ONLY BASED ON THE VALIDITY OF NOTICE U/S. 143(2) AND ACCORDINGLY DID NOT PRESS THE OTHER GROUNDS. IN THE CIRCUMSTANCES, THE OTHER ISSUES RAISED BY THE APPEL LANT IN THE GROUNDS OF APPEAL ARE DISMISSED AS WITHDRAWN. 2.2 IN THE APPEAL FILED BEFORE TRIBUNAL ALSO THE AD DITIONS HAVE NOT BEEN CHALLENGED BUT THE ONLY ISSUE WHICH HAS BEEN RAISED IS REGARDING VALIDITY OR OTHERWISE OF THE REASSESSMENT PROCEEDINGS. IT IS T HE CASE OF THE ASSESSEE THAT THE IMPUGNED ASSESSMENT BEING OF ASSESSMENT YEAR 2007-0 8, FOR THE PURPOSE OF ISSUANCE OF NOTICE UNDER SECTION 143(2), WILL BE GO VERNED BY THE PROVISO TO SUB- CLAUSE(II) OF SUB-SECTION(2) OF SECTION 143 WHICH S TOOD ON THE STATUTE BEFORE 1/4/2008 ( FOR THE SAKE OF CONVENIENCE HEREINAFTER REFERRED TO AS PRE-AMENDED PROVISO). THE PRE-AMENDED PROVISO WAS AMENDED BY F INANCE ACT 2003 W.E.F. 1/6/2003 AND THE SAME READ 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 I N WHICH THE RETURN IS FURNISHED. 2.3 AS AGAINST AFOREMENTIONED CASE OF ASSESSEE IT I S THE CASE OF THE AO THAT THE TIME LIMIT FOR ISSUE OF NOTICE WILL BE GOVERNED BY THE PROVISO SUBSTITUTED BY FINANCE ACT 2008 W.E.F. 01/04/2008 (FOR THE SAKE OF CONVENIENCE HEREINAFTER REFERRED TO AS AMENDED PROVISO). THE SAID PROVISO READ AS UNDER: PROVIDED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. 2.4 IF THE CASE OF THE ASSESSEE IS TO BE CONSIDERED THEN AS PER CLAIM OF THE ASSESSEE, THE LAST DATE FOR ISSUE OF NOTICE UNDER S ECTION 143(2) AS PER PRE- AMENDED PROVISO WILL BE 30/04/2009. THE NOTICE HAS BEEN ISSUED BY THE AO ON 12/08/2009, THEREFORE, IT IS THE CASE OF THE ASSESS EE THAT AS NOTICE UNDER SECTION 143(2) HAS BEEN ISSUED BEYOND THE PRESCRIBED TIME, THE ASSESSMENT IS INVALID. ITA NO.5915/MUM/2010, A.Y. 2007-08 4 2.5 ACCORDING TO THE CASE OF THE REVENUE THE CASE O F THE ASSESSEE WILL BE GOVERNED BY AMENDED PROVISO AND LAST DATE FOR ISSUE OF NOTICE UNDER SECTION 143(2) WILL BE 30/09/2009 AND AS NOTICE HAS BEEN IS SUED ON 12/08/2009 THE ISSUE OF NOTICE IS WITHIN THE PRESCRIBED TIME AND, THEREFORE, ASSESSMENT IS VALID. 2.6 THOUGH THIS ISSUE WAS NOT RAISED BEFORE AO IT WAS FIRST RAISED ONLY BEFORE LD. CIT(A). BEFORE LD. CIT(A) IT WAS THE CONTENTIO N OF THE ASSESSEE THAT ACCORDING TO DECISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT & OTHERS VS. HOTEL BLUE MOON, 321 ITR 362, WHERE NOTICE UNDER SECTION 143 ( 2) IS NOT ISSUED WITHIN THE PRESCRIBED TIME THEN THE ASSESSMENT WOULD BE INVAL ID. IT WAS SUBMITTED THAT THE CASE OF THE ASSESSEE WOULD BE COVERED BY PRE-AMENDE D PROVISO AND LAST DATE OF SERVICE OF NOTICE WAS 30/04/2009 AND SINCE NOTICE W AS ISSUED ON 12/08/2009 THE SAME WAS ISSUED BEYOND THE PRESCRIBED TIME. RELIANCE WAS ALSO PLACED ON THE DECISION OF SPECIAL BENCH IN THE CASE OF KUBER TOBACCO PRODUCTS PVT. LTD. VS. DCIT, 28 SOT 292 TO CONTEND THAT PROVISO TO SECTION 143(2) SUBSTITUTED BY FINANCE ACT, 2009, R.W.S. 292BB WILL BE APPLICABLE FROM ASSESSMENT YEAR 2008-09 AND IT DOES NOT HAVE RETROSPECTIVE EFFECT. IT WAS SUBMITTED THAT SINCE THE IMPUGNED ASSESSMENT YEAR IS 2007-08, THE PROVISIONS OF SECTION 292BB R.W.S. 143(2) WILL HAVE NO APPLICATION IN THE CASE OF TH E ASSESSEE. LD. CIT(A) AFTER CONSIDERING THESE SUBMISSIONS OF THE ASSESSEE, HAS COME TO A CONCLUSION THAT RELIEF CANNOT BE GRANTED TO THE ASSESSEE ON THE BAS IS OF DECISION RELIED UPON BY THE ASSESSEE SINCE RETURN IN THE PRESENT CASE WAS F ILED BY THE ASSESSEE AFTER 01/04/2008 WHEN AMENDED PROVISO WAS VERY MUCH ON TH E STATUTE BOOK. IT IS THE CASE OF LD. CIT(A) THAT THE EARLIER AMENDMENT CAR RIED OUT W.E.F. 01/06/2003 CLEARLY SHOWS THAT THE PROVISO IS NOT WITH REFERENC E TO ASSESSMENT YEAR BUT IT RELATES TO ACTION OF FILING OF THE RETURN AND THUS LD. CIT(A) HAS ARRIVED AT A CONCLUSION THAT AO WAS RIGHT IN FRAMING THE ASSESSM ENT AS THE CASE OF THE ASSESSEE IS GOVERNED BY AMENDED PROVISO. ITA NO.5915/MUM/2010, A.Y. 2007-08 5 2.7 THE ASSESSEE IS AGGRIEVED BY THE AFOREMENTIONE D ORDER PASSED BY LD. CIT(A) AND HAS FILED AFOREMENTIONED GROUNDS. 3. SUBMISSIONS MADE BEFORE LD. CIT(A) WERE REITERAT ED BEFORE US. APART FROM THOSE SUBMISSIONS IT WAS SUBMITTED BY LD. AR THAT D ECISION OF SPECIAL BENCH IN THE CASE OF KUBER TOBACCO PRODUCTS PVT. LTD.(SUPRA) HAS BEEN CONFIRMED BY HONBLE DELHI HIGH COURT VIDE DECISION DATED 06/10/ 2010. COPY OF THE SAID ORDER WAS FILED. IT WAS FURTHER SUBMITTED THAT HONBLE B OMBAY HIGH COURT IN THE CASE OF CIT VS. SALMAN KHAN VIDE THEIR DECISION DATED 1 /12/2009 IN I.T. APPEAL NO.2362 OF 2009 HAVE HELD THAT AMENDMENT BROUGHT IN TO SECTION 292BB W.E.F. 1/4/2008 ARE NOT APPLICABLE RETROSPECTIVELY. LD. A R ALSO REFERRED TO THE DECISION OF MUMBAI ITAT WHICH IS DATED 11/7/2012 IN THE CAS E OF PRAKASH NAGARDAS BROTHERS VS. ACIT, ITA NO.3700 TO 3702/M/2011, WHE RE IN FOLLOWING AFOREMENTIONED DECISION OF HONBLE BOMBAY HIGH COU RT IN THE CASE OF CIT VS. SLMAN KHAN (SUPRA), IT WAS DECIDED THAT AMENDMENT I N SECTION 292BB INSERTED IN THE STATUTE W.E.F. 1/04/2008 IS NOT APPLICABLE RETR OSPECTIVELY AND, THEREFORE, REASSESSMENT WERE NOT VALID WITHOUT SERVICE OF NOT ICE UNDER SECTION 143(2) OF THE ACT UPON THE ASSESSEE IN THE STIPULATED PERIOD. RE FERENCE WAS INVITED TO THE FOLLOWING OBSERVATIONS OF THE TRIBUNAL FROM THE SAI D ORDER. 8. WE HAVE CAREFULLY GONE THROUGH THE RELEVANT PRO VISIONS OF SEC.292BB AS WELL AS THE JUDICIAL PRONOUNCEMENTS CITED BY BOTH THE SIDES IN SUPPORT OF THEIR RESPECTIVE CONTENTIONS. ALTHOUGH THE LD. DR. HAS SUBMITTED THA T NOTICES UNDER SEC. 143(2) FOR ALL THE THREE YEARS UNDER CONSIDERATION WERE ISSUED BY THE A.O. IN THE STIPULATED PERIOD, IT IS OBSERVED THAT THE REQUIREMENT OF LAW IN THIS REGARD IS THAT THE SAME SHOULD BE SERVED UPON THE ASSESSEE DURING THE STIPU LATED PERIOD. AS AGREED BY THE LD. DR. HIMSELF, THERE IS HOWEVER NOTHING AVAILABLE ON RECORD TO PROVE THAT NOTICES U/S.143(2) CLAIMED TO HAVE BEEN ISSUED BY THE A.O. WERE ACTUALLY SERVED UPON THE ASSESSEE WITHIN STIPULATED PERIOD. 9. IN THE CASE OF KUBER TOBACCO P. LTD. (SUPRA), DE LHI SPECIAL OF THIS TRIBUNAL HAS HELD THAT SEC.292BB INSERTED BY THE FINANCE ACT, 20 08 W.E.F. 1ST APRIL, 2008 HAS NO RETROSPECTIVE OPERATION AND APPLIES TO ASSESSMENT Y EAR 2008-09 AND ONWARDS ONLY. IN THE CASE OF CIT VS. SALMAN KHAN (SUPRA), A SIMIL AR VIEW HAS BEEN TAKEN BY THE HONBLE BOMBAY HIGH COURT WHILE UPHOLDING THE ORDER OF THE TRIBUNAL CANCELLING THE ITA NO.5915/MUM/2010, A.Y. 2007-08 6 REASSESSMENT MADE U/S.143(3) R.W.S. 147 FOR NON-REC EIPT OF NOTICE U/S.L43(2) HOLDING THAT THE REASSESSMENT YEAR INVOLVED WAS RELATING TO THE PERIOD PRIOR TO INSERTION TO SEC.292BB. ALTHOUGH IN THE CASE OF CIT VS. RAM NARA YAN BANSAL (SUPRA) CITED BY THE LD. DR., A DIFFERENT VIEW HAS BEEN TAKEN BY THE HON BLE PUNJAB & HARYANA HIGH COURT IN FAVOUR OF THE REVENUE HOLDING THAT THE PRO VISIONS OF SEC.292BB INSERTED IN THE STATUTE W.E.F. 0 1.04.2008 ARE APPLICABLE TO AL L THE PROCEEDINGS PENDING ON 0 1.04.2008, WE ARE BOUND TO FOLLOW THE DECISION OF H ONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SALMAN KHAN (SUPRA) WHICH IS IN FAVOUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE SAID DECISION OF HONBLE JURISDICTION AL HIGH COURT, WE HOLD THAT THE REASSESSMENTS MADE BY THE A.O, U/S. 143(3) R.W.S. 1 47 FOR ALL THE YEARS UNDER CONSIDERATION VIZ. A.Y. 2003-04, 2004-05 & 2005-06 WITHOUT SERVING OF NOTICES U/S.143(2) UPON THE ASSESSEE IN THE STIPULATED PERI OD WERE BAD IN LAW AND THE SAME ARE LIABLE TO BE QUASHED. WE ORDER ACCORDINGLY AND DECIDE THIS PRELIMINARY ISSUE IN FAVOUR OF THE ASSESSEE. 10. KEEPING IN VIEW OUR DECISION RENDERED ON THE PR ELIMINARY ISSUE CANCELLING THE REASSESSMENTS MADE BY THE A.O. FOR ALL THE THREE YE ARS UNDER CONSIDERATION, THE OTHER GROUNDS RAISED BY THE ASSESSEE IN ITS APPEAL AS WELL AS ALL THE GROUNDS RAISED BY THE REVENUE IN ITS CROSS APPEALS RELATING TO QUA NTUM OF ADDITION MADE IN THE SAID REASSESSMENTS HAVE BECOME INFRUCTUOUS. WE, THEREFOR E, DO NOT DEEM IT NECESSARY OR EXPEDIENT TO ADJUDICATE UPON THE SAME. THUS, IT WAS PLEADED BY LD. AR THAT LD. CIT(A) HAS COMMITTED AN ERROR IN NOT ACCEPTING THE CLAIM OF THE ASSESSEE THAT ASSESSMENT IS NOT VALID FOR THE REASON THAT NOTICE UNDER SECTION 143(2) WAS NOT ISSUED WI THIN THE STIPULATED TIME. 4. ON THE OTHER HAND, IT WAS SUBMITTED BY LD. DR TH AT LD. CIT(A) HAS RIGHTLY DECIDED THE ISSUE. LD. DR SUBMIT THAT THE RETURN H AS BEEN FILED BY THE ASSESSEE AFTER THE AMENDED PROVISO BROUGHT INTO THE STATUTE. THE PROVISION REGARDING ISSUE OF NOTICE FOR INITIATION OF ASSESSMENT PROCEEDINGS ARE NOT DEPENDENT UPON ASSESSMENT YEAR BUT THE STARTING POINT OF THE PROVI SION WILL BE THE ACTION OF THE ASSESSEE OF FILING THE RETURN OF INCOME. HE IN THI S REGARD REFERRED TO THE LANGUAGE OF THE PROVISO IN WHICH THE WORDS USED ARE IN WHIC H THE RETURN IS FURNISHED. LD. DR FURTHER RELIED UPON THE EXPLANATORY NOTE ISSUED BY CBDT CIRCULAR NO.1 OF 2009 DATED 27/3/2009, COPY OF WHICH WAS PLACED ON O UR FILE. OUR ATTENTION WAS DRAWN TO PARA-42.6 TO 42.9, FOR THE SAKE OF CONVENI ENCE THE SAME IS REPRODUCED BELOW: 42.6 FURTHER, CLAUSE (II) OF SUB-SECTION (2) OF S ECTION 143 OF INCOME TAX ACT HAS BEEN AMENDED TO PROVIDE THAT THE NOTICE UNDER SUB-S ECTION (2) OF SECTION 143 SHALL ITA NO.5915/MUM/2010, A.Y. 2007-08 7 BE SERVED ON THE ASSESSEE WITHIN A PERIOD OF SIX MO NTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN I FURNISHED. 42.7 APPLICABILITY: THIS AMENDMENT HAS BEEN MADE APPLICABLE WITH EFFECT FROM 1 ST APRIL, 2008. THIS MEANS THAT THE PROVISION OF NEW SECTION 292BB SHALL APPLY IN ALL PROCEEDINGS WHICH ARE PENDING ON 1 ST APRIL, 2008. 42.8 SIMILARLY THE AMENDED PROVISION OF SUB-SECTIO N (2) OF SECTION 143 SHALL APPLY TO ALL SUCH RETURNS (IRRESPECTIVE OF THE ASSESSMENT YE AR TO WHICH THE RETURNS PERTAIN) WHERE NOTICE UNDER SUB-SECTION (2) OF SECTION 143 C AN STILL BE ISSUED ON 1 ST APRIL 2008 UNDER THE PRE-AMENDED PROVISION. 42.9 FOR EXAMPLE, ASSESSEE A FILES HIS TAX RETUR N ON 31 ST MARCH 2007, ASSESSEE B FILES HIS TAX RETURN ON 15 TH APRIL 2007 AND ASSESSEE C FILES HIS TAX RETURN O N 16 TH OCTOBER 2007. AS ON 1 ST APRIL, 2008 NOTICE UNDER THE PRE-AMENDED PROVISION OF SUB- SECTION (2) OF SECTION 143(COULD NOT HAVE BEEN ISSUED IN CASE OF A AND COULD HAVE BEEN ISSUED IN CASES OF B AND C. HENCE, T HE NEW PROVISION SHALL APPLY FOR RETURNS FILED BY B AND C BUT NOT FOR RETURN FIL ED BY A. IN CASE OF RETURNS FILED BY B AND C, THE NOTICE UNDER SUB-SECTION (2) OF SECTION 143 CAN BE SERVED ON THE ASSESSEE ON OR BEFORE 30TH SEPTEMBER 2008. ANY NOT ICE SERVED ON ASSESSEE IN THESE TWO CASES, AFTER THIS DATE, WILL NOT BE VALID . 4.1 REFERRING TO THE AFOREMENTIONED CLARIFICATION ISSUED BY THE BOARD IT WAS SUBMITTED BY LD. DR THAT THE AMENDED PROVISO ARE AP PLICABLE IRRESPECTIVE OF THE ASSESSMENT YEAR TO WHICH THE RETURN PERTAINS. 4.2 LD. DR FURTHER SUBMITTED THAT THE CASE LAW RELI ED UPON BY THE LD. AR HAS NO APPLICATION ON THE FACTS OF THE PRESENT CASE AS IN NONE OF THE CASES RELIED UPON BY LD. DR THE RETURN WAS FILED BY THE ASSESSEES AFT ER THE INSERTION OF AMENDED PROVISO. HE ALSO DREW OUR ATTENTION TOWARDS OBSER VATIONS OF LD. CIT(A) IN WHICH IT WAS POINTED OUT THAT THE RATIO OF THE DECISIONS RELIED UPON BY LD. AR COULD NOT BE APPLIED TO THE CASE OF THE ASSESSEE. 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. A CAREFUL READING OF THE LANGUAGE US ED IN THE PROVISO WILL REVEAL THAT THE LIMITATION FOR ISSUE OF NOTICE UNDER SECTION 14 3(2) RELATES TO THE ACTION OF THE ASSESSEE IN FILING OF THE RETURN. IT DOES NOT RELA TES TO THE ASSESSMENT YEAR AND IN THIS REGARD THE LANGUAGE OF THE PROVISO IS CLEAR AN D UNAMBIGUOUS. IN BOTH THE PROVISOS, I.E. PRE-AMENDED PROVISO AND AMENDED PROV ISO, THE STARTING POINT FOR ITA NO.5915/MUM/2010, A.Y. 2007-08 8 ISSUE OF NOTICE IS THE ACTION OF THE ASSESSEE OF FI LING THE RETURN. IN THE PRE- AMENDED PROVISO THE PERIOD GIVEN FOR ISSUE OF NOTIC E UNDER SECTION 143(2) IS 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETUR N IS FURNISHED AND IN THE AMENDED PROVISO THE SAME IS WITHIN SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. MORE IMPORT ANTLY, IN THE PRESENT CASE THE RETURN HAS BEEN FILED ON THE DATE WHEN AMENDED PROV ISO WAS ON THE STATUTE. IT IS NOT A CASE WHERE CASE LAW RELATING TO SECTION 292 BB WILL BE APPLICABLE AS IN THE PRESENT CASE THERE IS NO QUESTION RELATING TO RETRO SPECTIVE APPLICATION OF THE STATUTE. SECTION 292BB IS A PROVISION REGULATING THE CIRCUMSTANCES WHERE NOTICE IS DEEMED TO BE VALID. IT DESCRIBES THAT WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDINGS AND CO-OPERATED IN ENQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UN DER ANY PROVISION OF THE ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND AS SESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDINGS OR ENQUIRY UNDER THE ACT THAT NOTICE WAS (A) NOT SERVED UPON HIM; (B) OR NOT SERVED UPON HIM IN TIME; (C) OR SERVED UPON HIM IN AN IMPROPER MANNER. EVEN SUCH PRESUMPTION W ILL NOT BE APPLICABLE IN A CASE WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION B EFORE COMPLETION OF THE ASSESSMENT OR REASSESSMENT. THEREFORE, PROVISIONS OF SECTION 292BB IS ONLY A DEEMING PROVISION DESCRIBING THE CIRCUMSTANCES WHER E THE ASSESSEE IS PRECLUDED FROM TAKING A GROUND THAT IN ABSENCE OF SERVICE OR IMPROPER SERVICE OF NOTICE, THE ASSESSMENT IS INVALID. HOWEVER, IN THE PRESENT CA SE NEITHER THE SERVICE OF NOTICE IS IN DISPUTE NOR THE PROPER SERVICE THEREOF. THE QUESTION IN THE PRESENT CASE IS THAT WHETHER THE CASE OF THE ASSESSEE SHALL BE GOVE RNED BY THE PRE-AMENDED PROVISO OR AMENDED PROVISO. IN NONE OF THE CASES R ELIED UPON BY LD. AR THIS ISSUE HAS BEEN ADDRESSED. THEREFORE, NONE OF THE CASE LA W RELIED UPON BY HIM WILL BE APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE .. 5.1 WE HAVE ALREADY OBSERVED THAT THE PRE-AMENDED AS WELL AS AMENDED PROVISO RELATES TO ACTION OF THE ASSESSEE OF FILING OF THE RETURN. IN THE CASE OF THE ASSESSEE WHEN RETURN WAS FILED BY HIM THE AMENDED PROVISO WAS VERY MUCH ON ITA NO.5915/MUM/2010, A.Y. 2007-08 9 THE STATUTE AND THE SAME WILL BE APPLICABLE. IF AM ENDED PROVISO IS APPLIED, THEN LAST DATE OF SERVICE OF NOTICE WILL BE 30/09/2009 A ND THE NOTICE IN THE PRESENT CASE HAS BEEN SERVED ON 12/08/2009, THEREFORE, THE NOTICE ISSUED UNDER SECTION 143(2) WAS WITHIN THE STIPULATED TIME. THUS, WE HO LD THAT LD. CIT(A) HAS COMMITTED NO ERROR IN HOLDING THAT ASSESSMENT CANNO T BE SAID TO BE INVALID ON THE GROUND THAT NOTICE UNDER SECTION 143(2) WAS NOT ISSUED AND SERVED UPON THE ASSESSEE BEFORE STIPULATED TIME. THE NOTICE ISSUED BY THE AO UNDER SECTION 143(2) WAS WELL WITHIN THE STIPULATED TIME. THEREFO RE, THE APPEAL FILED BY THE ASSESSEE IS DEVOID OF MERITS AND THE SAME IS DISMIS SED. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/07/201 4 ! ' #$ % &'( 31 /07/2014 ' ) SD/- SD/- ( /SANJAY ARORA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; &' DATED 31 /07/2014 ! ! ! ! ' '' ' *+, *+, *+, *+, -,$+ -,$+ -,$+ -,$+ / COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. *0./ / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. ,2) *+' , , / DR, ITAT, MUMBAI 6. )3 4 / GUARD FILE. !' !' !' !' / BY ORDER, 0,+ *+ //TRUE COPY// 5 55 5 / 6 6 6 6 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ' . ./ VM , SR. PS