Shri Ashok Jayaram Jadhav, Pune V. ITO, Ward 2(1), Pune

ITA 887/PUN/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0548 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 19-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Capital asset; Invalid notice; Period of limitation; Procedural lapse; Revised return; Reason to believe
• Section: 143(3); 142(1); 139(5); 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 887/PN/2013 %' ( ')( / ASSESSMENT YEAR : 2008-09 SHRI ASHOK JAYARAM JADHAV, FLAT NO. A601, SUN GRANDEUR CO-OP. HSG. SOC., S. NO. 338/3, MAUJE BAVDHAN (BK), TAL.:MULSHI, DISTT.-PUNE PAN : AEJPJ0909E ....... / APPELLANT ' / V/S. INCOME TAX OFFICER, WARD 2(1), PUNE / RESPONDENT ASSESSEE BY : SHRI SUNIL PATHAK & SHRI NIKHIL PATHAK REVENUE BY : SHRI B.C. MALAKAR / DATE OF HEARING : 02-11-2015 / DATE OF PRONOUNCEMENT : 30-12-2015 * / ORDER PER VIKAS AWASTHY, JM : THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE DATED 29-11 -2013 FOR THE ASSESSMENT YEAR 2008-09. 2 ITA NO. 887/PN/2013, A.Y. 2008-09 2. THE ASSESSEE HAS IMPUGNED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) BY RAISING 7 GROUNDS IN APPEAL. HOWEV ER, THE LD. AR OF THE ASSESSEE HAS STATED AT THE BAR THAT HE IS O NLY PRESSING GROUND NOS. 1, 2 AND 3. THE REMAINING GROUNDS I.E. GROUND NOS. 4, 5 AND 6 WERE NOT PRESSED. THE GROUND NO. 7 IN THE APPEA L IS GENERAL IN NATURE. IN GROUND NOS. 1 AND 2 THE ASSESSEE HAS CHAL LENGED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN REJECTING T HE CONTENTIONS OF THE ASSESSEE THAT THE NOTICE ISSUED U/S . 143(2) IS BEYOND THE TIME LIMIT AS PRESCRIBED UNDER THE ACT. THEREFORE, THE ASSESSMENT MADE BY THE ASSESSING OFFICER IS INVALID. IN GROUND NO. 3 TH E ASSESSEE HAS CHALLENGED THE FINDINGS OF COMMISSIONER OF INCOME TAX (A PPEALS) IN CONFIRMING THE ADDITION OF RS.17,50,000/- ON ACCOUNT OF SHO RT TERM CAPITAL GAIN AND RS.24,39,063/- AS LONG TERM CAPITAL GAIN ARIS ING FROM SALE OF LAND. 3. THE BRIEF FACTS OF THE CASE ARE : THE ASSESSEE IS AN IN DIVIDUAL AND IS WORKING AS ELECTRICAL CONTRACTOR. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 12-12-2008 (12-10-2008 AS PER ASSESSMENT ORDER) DECLARING TOTAL INCOME OF RS.3,71 ,730/-. THEREAFTER, THE ASSESSEE FILED REVISED RETURN OF INCOME ON 11-05-2009 DECLARING TOTAL INCOME OF RS.1,50,090/-. THE CASE OF THE ASS ESSEE WAS SELECTED FOR SCRUTINY AND ACCORDINGLY NOTICE U/S. 143(2) WA S ISSUED TO THE ASSESSEE ON 18-08-2010. DURING THE COURSE OF SCRU TINY ASSESSMENT THE ASSESSING OFFICER MADE ADDITION OF RS.24,39,063/- ON ACCO UNT OF LONG TERM CAPITAL GAIN ARISING FROM SALE OF LAND SITUATED AT GAT NO. 77, KASAR AMBOLI, TAL.-MULSHI, DISTT.-PUNE. THE ASSESSING OFFICER FURTHER MADE ADDITION OF RS.17,50,000/- AS SHORT TERM CAPITAL GAIN O N SALE OF CAPITAL ASSET I.E. LAND. 3 ITA NO. 887/PN/2013, A.Y. 2008-09 AGGRIEVED BY THE ASSESSMENT ORDER DATED 31-12-2010 P ASSED U/S. 144 OF THE ACT, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). APART FROM CHALLENGING THE ASSESSMENT ORDER ON MERITS, THE ASSESSEE CHALLENGED THE VIRES OF THE ASSESSMENT ON THE GROUND THAT THE NOTICE ISSUED U/S. 1 43(2) WAS BEYOND THE STATUTORY TIME LIMIT AS PRESCRIBED UNDER THE PROVISIONS OF THE ACT. ACCORDINGLY, THE ASSESSMENT PROCEEDINGS ARE IN VALID. THE COMMISSIONER OF INCOME TAX (APPEALS) REJECTED THE CONTENT IONS OF THE ASSESSEE IN VIEW OF THE PROVISIONS OF SECTION 292BB OF TH E ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE ON MERITS AS WELL AND CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. NOW, THE ASSESSEE IS IN SECOND APPEAL B EFORE THE TRIBUNAL ASSAILING THE FINDINGS OF THE FIRST APPELLATE AUTHORITY. 4. SHRI SUNIL PATHAK AND SHRI NIKHIL PATHAK APPEARING ON BE HALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE FILED ORIGINAL RE TURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 12-12-2008. THE D UE DATE FOR FILING OF RETURN U/S. 139(1) FOR THE ASSESSMENT YEAR 2008-0 9 WAS 31-07-2008. THUS, THE ORIGINAL RETURN FILED BY THE ASSESS EE WAS BELATED RETURN U/S. 139(4) OF THE ACT. THEREAFTER, THE ASSESSEE FILED REVISED RETURN OF INCOME U/S. 139(5) OF THE ACT ON 11-05-2009. T HE ASSESSING OFFICER ISSUED NOTICE U/S. 143(2) ON 18-08-2010 I.E. WITHIN A PE RIOD OF SIX MONTHS FROM THE END OF FINANCIAL YEAR IN WHICH THE REV ISED RETURN WAS FILED BY THE ASSESSEE. SINCE, THE ASSESSEE HAD FILED OR IGINAL RETURN OF INCOME U/S. 139(4), NO REVISED RETURN COULD HAVE BEEN FILED BY THE ASSESSEE. AS PER THE PROVISIONS OF SECTION 139(5), REVISED RETURN COULD BE FILED ONLY IN RESPECT OF ORIGINAL RETURN FILED U/S. 139(1) OR RETURN FILED IN PURSUANCE TO NOTICE ISSUED U/S. 142(1) OF THE ACT. FURT HER, AS PER 4 ITA NO. 887/PN/2013, A.Y. 2008-09 THE PROVISIONS OF SECTION 143(2) NO NOTICE U/S. 143(2) CAN BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE E ND OF FINANCIAL YEAR IN WHICH RETURN IS FURNISHED. IN THE CASE OF ASSESSE E, SINCE THE REVISED RETURN IS INVALID, THE LIMITATION FOR ISSUING NOTICE U/S. 143(2) HAS TO BE COUNTED FROM THE DATE OF ORIGINAL RETURN OF INC OME FILED U/S. 139(4) I.E. 12-12-2008. THUS, THE LIMITATION FOR ISSUING NOTICE U/S. 143(2) IN THE PRESENT CASE COMES TO AN END ON 30-09-2 009, WHEREAS THE NOTICE U/S. 143(2) HAS BEEN ISSUED ALMOST AFTER A YEAR ON 18-08-2010. THE LD. AR FURTHER CONTENDED THAT SINCE, NOTICE U/S. 143(2) HAS BEEN ISSUED BEYOND THE PERIOD OF LIMITATION, THE ASSESSMENT MADE IN PURSUANCE THEREOF IS INVALID. THE ISSUANCE OF NOTICE U/S. 143(2) WITHIN THE PRESCRIBED TIME LIMIT IS MANDATORY AND THE REQUIREMENT OF NOTICE U/S. 143(2) CANNOT BE DISPENSED WITH. IN SUPPORT OF HIS SU BMISSIONS THE LD. AR PLACED RELIANCE ON THE DECISION OF HON'BLE SUPRE ME COURT OF INDIA IN THE CASE OF ACIT VS. HOTEL BLUE MOON REPORTED AS 321 ITR 362 (SC). THE LD. AR FURTHER DRAWS SUPPORT FROM THE DECISION OF HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. C EBON INDIA LTD. REPORTED AS 347 ITR 583 (P&H) WHEREIN IT HAS BEEN HELD THAT WHERE NOTICE U/S. 143(2) HAS NOT BEEN SERVED ON THE ASSESSEE, THE ASSESSMENT IS VOID. THE HON'BLE HIGH COURT HAS FURTHER OBSERVED TH AT ABSENCE OF NOTICE IS NOT CURABLE U/S. 292BB OF THE ACT. IN SO FAR AS ON MERITS OF THE CASE, THE LD. AR SUBMITTED THAT THE ASSESSEE HAS NO T SOLD THE LAND IN QUESTION DURING THE PERIOD RELEVANT TO THE IMPUGNED AS SESSMENT YEAR. THE AUTHORITIES BELOW HAVE ERRED IN HOLDING THAT TH E ASSESSEE IS LIABLE FOR LONG/SHORT TERM CAPITAL GAINS TAX ON THE SALE OF LAND. 5. AU CONTRAIRE SHRI B.C. MALAKAR REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE FINDINGS OF COMMISSIONER OF INCOM E TAX 5 ITA NO. 887/PN/2013, A.Y. 2008-09 (APPEALS). THE LD. DR SUBMITTED THAT THE ASSESSEE HAD NO T RAISED ANY OBJECTION WITH REGARD TO DEFECT IN NOTICE ISSUED U/S. 143(2 ) BEFORE THE ASSESSING OFFICER. IT WAS FOR THE FIRST TIME BEFORE COMMISSION ER OF INCOME TAX (APPEALS) THAT THE ASSESSEE HAD RAISED OBJE CTION REGARDING TIME BARRED NOTICE U/S. 143(2) OF THE ACT. SINCE, THE ASSES SEE HAD PARTICIPATED IN THE ASSESSMENT PROCEEDINGS THE PROVISIONS OF SECTION 292BB SHALL COME INTO PLAY AND IT SHALL BE DEEMED THAT THE NOTICE ISSUED U/S. 143(2) HAS BEEN DULY SERVED ON HIM IN ACCORDA NCE WITH THE PROVISIONS OF THE ACT. AS REGARDS THE ADDITION ON MERITS THE LD. DR SUBMITTED TH AT DURING ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER HAD A SKED THE REPRESENTATIVES OF THE ASSESSEE TO FURNISH DETAILS OF THE PROPERTY SOLD. HOWEVER, AFTER INITIAL APPEARANCE OF THE LD. AR OF THE ASSES SEE NO ONE FROM THE ASSESSEES SIDE ATTENDED THE ASSESSMENT PROC EEDINGS OR FURNISHED THE DETAILS. THE ASSESSING OFFICER GOT THE DETAILS OF THE LAND FROM THE OFFICE OF SUB-REGISTRAR, PAUD, PUNE AND COMPUTED T HE CAPITAL GAINS AT RS.24,39,063/-. THE ASSESSING OFFICER ALSO NOTED TH AT THE ASSESSEE HAD SOLD OPEN PLOT FOR RS.17,50,000/-. IN THE AB SENCE OF ANY ASSISTANCE FROM THE ASSESSEES SIDE, THE ASSESSING OFFICER WAS CONSTRAINED TO MAKE BEST JUDGMENT ASSESSMENT U/S. 144 OF THE ACT. EVEN DURING THE FIRST APPELLATE PROCEEDINGS, THE ASSESSEE FAILED TO PLACE ON RECORD ANY DOCUMENT TO REBUT THE FINDINGS OF THE AS SESSING OFFICER. THE LD. DR PRAYED FOR DISMISSING THE APPEAL OF THE ASSESSEE. 6. THE LD. AR REFUTING THE SUBMISSIONS FORWARDED BY THE DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSE E HAD POINTED OUT DURING THE ASSESSMENT PROCEEDINGS VIDE LETTER DATED 09-12-2010 REGARDING THE DEFECTIVE NOTICE ISSUED U/S. 143(2) OF THE ACT . THE 6 ITA NO. 887/PN/2013, A.Y. 2008-09 ASSESSEE HAD SPECIFICALLY POINTED OUT THAT THE NOTICE IS TIME BARRED. THE SAID LETTER WAS DELIVERED IN THE OFFICE OF ASSESSING OFFIC ER AND IT BEARS THE ACKNOWLEDGMENT STAMP. THE ASSESSING OFFICER H AS ADMITTED THE FACT IN REMAND REPORT DATED 09-10-2012 THAT THE LE TTER DATED 09-12-2010 BEARS OFFICE STAMP. THE LD. AR REFERRED TO TH E AFORESAID LETTER AT PAGE 5 OF THE PAPER BOOK. 7. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. BEFORE WE PROCEED TO DECIDE THE ISSUE RELATING TO VALIDITY OF NOTIC E U/S. 143(2) OF THE ACT IT IS ESSENTIAL TO HAVE GLANCE AT THE DATES AN D EVENTS AND THE RELEVANT PROVISIONS OF THE ACT. DATES EVENTS 31-07-2008 DUE DATE FOR FILING RETURN OF INCOME U/S. 139(1) OF THE ACT FOR THE ASSESSMENT YEAR 2008-09. 12-12-2008 ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE. 11-05-2009 REVISED RETURN OF INCOME FILED BY THE ASSESSEE. 18-08-2010 NOTICE U/S. 143(2) ISSUED BY THE ASSESSING OFFICER. 8. THE PROVISIONS REGARDING FILING OF REVISED RETURN OF INCOME ARE CONTAINED IN SECTION 139(5) WHICH ARE REPRODUCED HERE-IN-UNDER: [(5) IF ANY PERSON, HAVING FURNISHED A RETURN UNDE R 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 EXPIRY OF O NE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETI ON OF THE ASSESSMENT, WHICHEVER IS EARLIER : PROVIDED THAT WHERE THE RETURN RELATES TO THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF AP RIL, 1988, OR ANY EARLIER ASSESSMENT YEAR, THE REFERENCE TO ONE YEAR AFORESAID SHALL BE CONSTRUED AS A REFERENCE TO TWO YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR.] 7 ITA NO. 887/PN/2013, A.Y. 2008-09 9. THE RELEVANT PROVISIONS RELATING TO ISSUANCE OF NOTICE FOR ASSESSMENT ARE CONTAINED IN SECTION 143(2) OF THE ACT WHIC H READS AS UNDER: [(2) WHERE A RETURN HAS BEEN FURNISHED UNDER SECTI ON 139, OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION (1) OF SECTI ON 142, THE ASSESSING OFFICER SHALL, (I) WHERE HE HAS REASON TO BELIEVE THAT ANY CLAIM O F LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF MADE IN T HE RETURN IS INADMISSIBLE, SERVE ON THE ASSESSEE A NOTICE SPECIF YING PARTICULARS OF SUCH CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWA NCE OR RELIEF AND REQUIRE HIM, ON A DATE TO BE SPECIFIED THEREIN TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE OR PARTICULARS S PECIFIED THEREIN OR ON WHICH THE ASSESSEE MAY RELY, IN SUPPO RT OF SUCH CLAIM: [ PROVIDED THAT NO NOTICE UNDER THIS CLAUSE SHALL BE SERVED ON THE ASSESSEE ON OR AFTER THE 1ST DAY OF JUNE, 2003;] (II) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE ( I), IF HE CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NOT UNDER-PAID THE TAX IN ANY MANNER, S ERVE ON THE ASSESSEE A NOTICE REQUIRING HIM, ON A DATE TO BE SP ECIFIED THEREIN, EITHER TO ATTEND HIS OFFICE OR TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPP ORT OF THE RETURN: [ PROVIDED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE EN D OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED.]] 10. A PERUSAL OF SUB-SECTION (5) OF SECTION 139 WOULD SHOW THAT THE PROVISIONS RELATING TO FILING OF REVISED RETURN ARE APPLICABLE O NLY TO THE RETURN FILED U/S. 139(1) OR RETURN OF INCOME FILED IN PURSUANC E TO NOTICE U/S. 142(1) OF THE ACT. A BARE READING OF THE PROVISIONS OF SUB-SECTION (5) OF SECTION 139 MAKES IT UNAMBIGUOUSLY CLEAR THAT BELAT ED RETURN FILED UNDER THE PROVISIONS OF SECTION 139(4) CANNOT BE REVISED. 11. THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF KU MAR JAGDISH CHANDRA SINHA VS. CIT REPORTED AS 86 TAXMAN 12 2 (SC) HELD THAT NO REVISED RETURN CAN BE FILED UNDER SUB-SECTION (5) OF SECTION 139 IN A CASE WHERE THE RETURN IS FILED U/S. 139(4). IF SUCH REV ISED RETURN IS 8 ITA NO. 887/PN/2013, A.Y. 2008-09 FILED, IT SHALL NOT BE VALID IN LAW. THE RELEVANT EXTRACT OF TH E FINDINGS IN THE CASE OF KUMAR JAGDISH CHANDRA SINHA VS. CIT (SUPRA) ARE AS UNDER: 11. THE FIRST QUESTION IS WHETHER A PERSON WHO FIL ES A RETURN UNDER SECTION 139(4) IS ENTITLED TO FILE A REVISED RETURN BEFORE THE ASSESSMENT IS MADE. WE THINK, NOT. THE FURNISHING OF A REVISED RE TURN IS PROVIDED BY SUB SECTION (5) OF SECTION 139. ACCORDING TO THIS S UB-SECTION, 'ANY PERSON HAVING FURNISHED A RETURN UNDER SUB-SECTION (1) OR SUB-SECTION (2)' MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE ASS ESSMENT IS MADE IF HE DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT IN TH E ORIGINAL RETURN. THE VERY FACT THAT THIS RIGHT IS GIVEN TO A PERSON WHO HAS FILED A RETURN UNDER SUB-SECTION (1) OR SUB-SECTION (2) OF SECTION 139 MEANS BY NECESSARY IMPLICATION THAT SUCH A RIGHT IS DENIED T O A PERSON WHO FILES THE RETURN UNDER SECTION 139(4). THE HIGH COURT HAS , HOWEVER, TAKEN THE OTHER VIEW RELYING UPON THE LANGUAGE OF CLAUSE (C) OF SUB-SECTION (1) OF SECTION 153. SUB-SECTION (1) OF SECTION 153 PRESCRI BES THE TIME LIMITS FOR COMPLETING THE ASSESSMENT. IN THE PRESENT CASE, IT IS NOT IN DISPUTE, THE PERIOD ALLOWED FOR MAKING THE ASSESSMENT IS FOUR YE ARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AS PROVIDED BY SECTION 153(1)(A)(I ). SECTION 153(1)(C) PROVIDES AN ALTERNATE PERIOD OF L IMITATION. IT SAYS THAT IF THE ASSESSMENT IS MADE BEFORE 'THE EXPIRY OF ONE YE AR FROM THE DATE OF THE FILING OF RETURN OR A REVISED RETURN UNDER SUB- SECTION (4) OR SUB-SECTION (5) OF SECTION 139' IT WOULD YET BE WITHIN LIMITATIO N NOTWITHSTANDING THE FACT THAT IT MAY BE BARRED UNDER OTHER PROVISIONS C ONTAINED IN SUB- SECTION (1) OF SECTION 153. THE HIGH COURT IS OF TH E OPINION THAT LANGUAGE EMPLOYED IN CLAUSE (C) OF SECTION 153(1) CONTEMPLAT ES THE FILING OF A REVISED RETURN EVEN IN A CASE WHERE ORIGINAL RETURN IS FILED UNDER SUB- SECTION (4). WE FIND IT DIFFICULT TO AGREE. CLAUSE (C) EMPLOYS BOTH THE EXPRESSIONS 'RETURN' AND 'REVISED RETURN' AND REFER S TO BOTH THE SUB- SECTIONS (4) AND (5) OF SECTION 139. REASONABLY REA D IT MEANS THE RETURN FILED UNDER SUB-SECTION (4) AND THE REVISED RETURN FILED UNDER SUB-SECTION (5) OF SECTION 139. IT WOULD NOT BE REASONABLE TO C ONSTRUE THE SAID CLAUSE AS INDIRECTLY CONFERRING A RIGHT WHICH IS NOT CONFE RRED DIRECTLY BY SUB- SECTION (5) OF SECTION 139. THE HIGH COURT HAS DRAW N A DISTINCTION BETWEEN A REVISED RETURN AND A RECTIFIED RETURN. MA Y BE, THERE IS A DISTINCTION. WE ARE NOT CONCERNED HERE WITH A RECTI FIED RETURN BUT WHAT WAS AVOWEDLY A REVISED RETURN AND WHICH WAS IN TRUT H A NEW RETURN. WE FIND IT EQUALLY DIFFICULT TO AGREE WITH THE REST OF THE REASONING OF THE HIGH COURT ON THIS ASPECT. WE ARE, THEREFORE, OF THE OPINION THAT NO 9 ITA NO. 887/PN/2013, A.Y. 2008-09 REVISED RETURN CAN BE FILED UNDER SUB-SECTION (5) O F SECTION 139 IN A CASE WHERE THE RETURN IS FILED UNDER SECTION 139( 4). ONCE THIS IS SO THE REVISED RETURNS FILED BY THE ASSESSEE FOR BO TH THE SAID ASSESSMENT YEARS WERE NOT VALID IN LAW AND COULD NO T HAVE BEEN TREATED AND ACTED UPON AS REVISED RETURNS CONTEMPLA TED BY SUB- SECTION (5) OF SECTION 139 - WHICH MEANS THAT SECTION 153(1)(C) WAS NOT ATTRACTED IN THIS CASE. INDEED, THIS IS THE VIEW TA KEN BY ALL THE HIGH COURTS AS CONCEDED BY MR. ASHOK SEN - SEE O.P. MALHOTRA V. CIT [1981] 129 ITR 379 (DELHI), DR. S.B . BHARGAVA V. CIT [1982] 136 ITR 559 (ALL.), VIRNALCH ANDV. CIT [1985] 155 ITR 593(RAJ.) AND EAPEN JOSEPH V. CIT [1987] 16 8 ITR 26 (KER.). ONLY THE CALCUTTA HIGH COURT HAS TAKEN THE CONTRARY VIEW WITH WHICH WE ARE UNABLE TO AGREE. [EMPHASIZED BY US] 12. IN THE PRESENT CASE UNDISPUTEDLY THE ASSESSEE HA S FILED ORIGINAL RETURN OF INCOME U/S. 139(4). THEREAFTER THE ASSESSEE REV ISED THE ORIGINAL RETURN ON 11-05-2009. THE ASSESSING OFFICER ISSUED NOTICE U/S. 143(2) ON 18-08-2010. AS PER THE PROVISIONS OF SECTIO N 143(2) NO NOTICE SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHE D. SINCE, THE REVISED RETURN FILED BY THE ASSESSEE IS INVALID AND NO N-EST IN EYE OF LAW, THE PERIOD OF LIMITATION FOR ISSUING NOTICE U/S. 143(2) HAS T O BE CALCULATED FROM THE DATE OF FILING OF ORIGINAL RETURN. THE ORIGIN AL RETURN WAS FILED ON 12-12-2008 I.E. IN THE FINANCIAL YEAR 2008-09 THE PERIOD OF LIMITATION FOR ISSUING NOTICE U/S. 143(2) WITH REFERENCE TO ORIG INAL RETURN COMES TO AN END ON 30-09-2009. THEREFORE, THE NOTICE W AS CLEARLY ISSUED BEYOND THE STATUTORY PERIOD OF LIMITATION. SINCE, THE NOTICE ISSUED U/S. 143(2) IS BARRED BY LIMITATION, NO VALID ASSESSME NT COULD HAVE BEEN MADE ON THE ASSESSEE BY ASSESSING OFFICER IN T HE ABSENCE OF VALID NOTICE U/S. 143(2) OF THE ACT. 10 ITA NO. 887/PN/2013, A.Y. 2008-09 13. THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF AC IT VS. HOTEL BLUE MOON (SUPRA) WHILE DEALING WITH THE CASE WHERE ASSESSM ENT WAS MADE IN THE CASE OF SEARCH PROCEEDINGS HAD OCCASION TO CONSIDER THE QUESTION REGARDING ISSUANCE OF NOTICE U/S. 143(2). THE QUE STION THAT HAD COME BEFORE THE HON'BLE APEX COURT WAS, WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE C ASE THE ISSUANCE OF NOTICE U/S. 143(2) OF THE INCOME TAX ACT, 1961 WITHIN THE PRESCRIBED TIME LIMIT FOR THE PURPOSE OF MAKING THE ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 IS MANDATORY? THE HON'BLE APEX COURT AFTER APPRECIATING THE FACTS OF T HE CASE AND THE PROVISIONS OF THE ACT HELD THAT THE ISSUANCE OF NOTICE U/S. 143(2) WITHIN THE STATUTORY TIME LIMIT IS MANDATORY. THE HON 'BLE COURT FURTHER HELD THAT OMISSION ON THE PART OF ASSESSING AUTHO RITY TO ISSUE NOTICE U/S. 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND IS NOT CURABLE. THE REQUIREMENT OF NOTICE U/S. 143(2) CANNOT BE D ISPENSED WITH. 14. THE LD. DR WHILE DEFENDING THE ORDER OF COMMISSIONER O F INCOME TAX (APPEALS) HAS TAKEN THE SHELTER OF THE PROVISIONS U/S. 292BB OF THE ACT. THE HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT V S. CEBON INDIA LTD. (SUPRA) HAS HELD THAT ABSENCE OF NOTICE IS NOT CURABLE U/S. 292BB OF THE ACT. THE RELEVANT EXTRACT OF THE JUDG MENT OF HON'BLE HIGH COURT IS AS UNDER: 2. THE ASSESSEE FILED RETURN FOR THE ASSESSMENT YEA R IN QUESTION ON 30TH NOV., 1996, WHICH WAS PROCESSED UNDER S. 143(1 )(A) ON 30TH MAY, 1997. THEREAFTER, ASSESSMENT WAS FRAMED UNDER S. 14 4 OF THE ACT, WHICH WAS AFFIRMED IN APPEAL. THE TRIBUNAL, HOWEVER, REMA NDED THE MATTER TO CIT(A). THE CIT(A), IN THE SECOND ROUND, ALLOWED TH E APPEAL ON THE GROUND THAT THERE WAS NO EVIDENCE TO SHOW THAT NOTI CE UNDER S. 143(2) OF THE ACT HAD BEEN SERVED ON THE ASSESSEE BEFORE 30TH NOV., 1997 I.E. 11 ITA NO. 887/PN/2013, A.Y. 2008-09 WITHIN ONE YEAR OF THE FILING OF THE RETURN. IT WAS ACCORDINGLY HELD BY THE CIT(A) THAT THE ASSESSMENT WAS VOID. 3. THE FINDING OF THE CIT(A) HAS BEEN AFFIRMED BY T HE TRIBUNAL. 4. LEARNED COUNSEL FOR THE REVENUE SUBMITS THAT A NOTICE HAS BEEN DULY DISPATCHED TO THE ASSESSEE ON 13TH NOV., 1997 AND THE IRREGULARITY OR DEFECT IN ISSUING NOTICE WAS CURABLE UNDER S. 29 2BB OF THE ACT. 5. WE FIND THAT CONCURRENT FINDING HAS BEEN RECORDE D BY THE CIT(A) AS WELL AS THE TRIBUNAL ON THE QUESTION OF DATE OF SERVICE OF NOTICE. NOTICE WAS NOT SERVED WITHIN THE STIPULATED TIME. MERE GIV ING OF DISPATCH NUMBER WILL NOT RENDER THE SAID FINDING TO BE PERVE RSE. IN ABSENCE OF NOTICE BEING SERVED, THE AO HAD NO JURISDICTION TO MAKE ASSESSMENT. ABSENCE OF NOTICE CANNOT BE HELD TO BE CURABLE UNDE R S. 292BB OF THE ACT. 6. IN VIEW OF ABOVE, NO SUBSTANTIAL QUESTION OF LA W ARISES. 7. THE APPEAL IS DISMISSED. IN THE PRESENT CASE, THE NOTICE U/S. 143(2) WAS ISSUED A ND SERVED AFTER THE ELAPSE OF STATUTORY TIME LIMIT AS ENVISAGED U/S. 1 43(2) OF THE ACT. THE DEFECT IN ISSUE OF NOTICE IS NOT CURABLE, THUS THE NOTICE IS INVALID. THE PROVISIONS OF SECTION 292BB WOULD NOT HELP THE DEPARTMENT TO ESCAPE FROM MANDATORY PROVISIONS OF THE ACT. 15. IN VIEW OF THE FACTS OF THE CASE AND THE LAW LAID DOWN BY THE HON'BLE APEX COURT, WE ARE OF THE CONSIDERED OPINION THA T THE NOTICE ISSUED U/S. 143(2) BY THE ASSESSING OFFICER WAS BARRED BY LIM ITATION AND WAS THUS INVALID. THE PROCEEDINGS ARISING FROM THE SA ID NOTICE ARE ALSO VITIATED. THUS, THE ASSESSMENT ORDER PASSED IN PURS UANCE THEREOF IS ANNULLED. THE GROUND NOS. 1 AND 2 RAISED IN THE APPEAL OF THE ASSESSEE IS ALLOWED. 12 ITA NO. 887/PN/2013, A.Y. 2008-09 16. SINCE, THE APPEAL OF THE ASSESSEE HAS BEEN ALLOWED ON GROUND NOS. 1 AND 2, THE SUBMISSIONS MADE BY THE ASSESSEE ON M ERITS HAVE BECOME ACADEMIC THUS, REQUIRES NO FURTHER ADJUDICATION. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON WEDNESDAY, THE 30 TH DAY OF DECEMBER, 2015. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 30 TH DECEMBER, 2015 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-II, PUNE 4. ' / THE CIT-II, PUNE 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE