Smt Punit Kaur Dhupia, Kolkata V. ITO, WD-37(2), KOLKATA, Kolkata

MA 32/KOL/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4523 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 04-04-2016
• Court: TRIBUNAL
• Department Lawyers: MD G HYAS UDDIN
• Assessee Lawyers: V N DUTTA
• Keywords: Period of limitation; Reason to believe
• Section: 148

Judgement Text

M.A.NO.32/KOL/2016 -A/O ITA NO.578/KOL/2015-SMT. PU NIT KAUR DHUPIA A.Y.2005-06 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A KOL KATA [BEFORE HONBLE SHRI P.M.JAGTAP, AM & SHRI N.V.VA SUDEVAN, JM] M.A.NO.32/KOL/2016 A/O ITA NO. 578/KOL/2015 ASSESSMENT YEAR : 2005-06 SMT. PUNIT KAUR DHUPIA -VERSUS- I.T.O., WARD-37 ( 2) KOLKATA KOLKATA [PAN : ACYPD 1444 K) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI V.N.DUTTA, ADVOCATE FOR THE RESPONDENT: MD.GHYAS UDDIN, JCIT, SR.DR DATE OF HEARING : 08.07.2016. DATE OF PRONOUNCEMENT : 13 .07.2016. ORDER PER N.V.VASUDEVAN, JM: THIS IS A MISCELLANEOUS APPLICATION FILED BY THE AS SESSEE U/S.254(2) OF THE INCOME TAX ACT, 1961 (ACT), PRAYING THAT THE ORDER PASSED BY THE TRIBUNAL IN THE AFORESAID APPEAL DATED 9.12.2015 MAY BE RECTIFIED B Y RECALLING THE SAID ORDER IN SO FAR AS IT RELATES TO VALIDITY OF SERVICE OF NOTICE U/S. 143(2) OF THE ACT AND DECIDE THE SAID ISSUE AFRESH AFTER GIVING PROPER OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. 2. THE ASSESSEE IS AN INDIVIDUAL. SHE DERIVES INC OME IN THE FORM OF COMMISSION FROM ACTING AS AGENT FOR SELLING INSURANCE POLICIES . SHE FILED RETURN OF INCOME FOR AY 2005-06 ON 1.8.2005 DECLARING TOTAL INCOME OF RS.3, 35,970/-. THE SAME WAS PROCESSED U/S.143(1) OF THE ACT. SUBSEQUENTLY IT W AS FOUND THAT THE ASSESSEE HAD CLAIMED DEDUCTION OF INTEREST ON LOANS AGAINST HER INCOME FROM INSURANCE COMMISSION. THERE BEING NO NEXUS BETWEEN THE UTILIZATION OF LOA N FUND AND EARNING OF INSURANCE COMMISSION, THE AO WAS OF THE VIEW THAT THE INCOME OF THE ASSESSEE HAD BEEN UNDER ASSESSED. ACCORDINGLY A NOTICE U/S.148 WAS ISSUED. THE ASSESSEE FILED A LETTER ON 15.5.2007 REQUESTING THE AO TO RETURN FILED ON 1.8. 2005 BE TREATED AS A RETURN FILED IN RESPONSE TO THE NOTICE U/S.148 OF THE ACT. M.A.NO.32/KOL/2016 -A/O ITA NO.578/KOL/2015-SMT. PU NIT KAUR DHUPIA A.Y.2005-06 2 3. THE FIRST CONTROVERSY THAT AROSE FOR CONSIDERATI ON IN THE APPEAL WAS WITH REGARD TO SERVICE OF NOTICE U/S.143(2) OF THE ACT WITHIN T HE TIME LIMIT SPECIFIED THEREIN. THE ADMITTED FACTUAL POSITION WAS THAT NOTICE U/S.143(2 ) WAS SERVED ON THE ASSESSEE ONLY ON 5.9.2008. AS PER THE PROVISIONS OF SEC.143(2) A S SUBSTITUTED BY THE FINANCE ACT, 2002, THE PERIOD WITHIN WHICH NOTICE U/S.143(2) OF THE ACT HAS TO BE SERVED IS 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETUR N OF INCOME WAS FILED BY THE ASSESSEE. THE ASSESSEE IN THE PRESENT CASE IS DEEM ED TO HAVE FILED HER RETURN OF INCOME ON 15.5.2007 WHEN A LETTER WAS FILED BEFORE AO REQUESTING THE RETURN ORIGINALLY FILED ON 1.8.2005 TO BE TREATED AS A RET URN FILED IN RESPONSE TO NOTICE U/S.148 OF THE ACT. AS PER THE LAW AS IT PREVAILED WHEN T HE RETURN OF INCOME WAS FILED I.E., AS ON 15.5.2007, THE SERVICE OF NOTICE U/S.143(2) OF T HE ACT OUGHT TO HAVE BEEN MADE ON OR BEFORE 31.5.2008. IN NORMAL CIRCUMSTANCES, THER E WOULD HAVE BEEN NO DIFFICULTY IN COMING TO THE CONCLUSION THAT THE PERIOD OF LIMITAT ION FOR SERVICE OF NOTICE U/S.143(2) OF THE ACT WAS 31.5.2008 BUT THE SAME WAS SERVED ON LY ON 5.9.2008 AND THEREFORE THE ENTIRE ASSESSMENT HAS TO BE HELD TO BE BAD IN LAW F OR NON-SERVICE OF NOTICE U/S.143(2) OF THE ACT WITHIN THE PERIOD OF LIMITATION LAID DOW N THEREIN. HOWEVER THERE WAS AN AMENDMENT TO THE LAW BY THE FINANCE ACT, 2008 W.E.F .1-4-2008. THE PROVISIONS OF SEC.143(2) AS IT EXISTED PRIOR TO AMENDMENT BY THE FINANCE ACT, 2008 AND AFTER SUCH AMENDMENT WAS AS FOLLOWS: SEC.143(2) AS IT EXISTED PRIOR TO AMENDMENT BY THE FINANCE ACT, 2008: '(2) WHERE A RETURN HAS BEEN FURNISHED UNDER SECTIO N 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 THE RETURN I S INADMISSIBLE, SERVE ON THE ASSESSEE A NOTICE SPECIFYING PARTICULARS OF SUCH CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF AND REQUI RE HIM, ON A DATE TO BE SPECIFIED THEREIN TO PRODUCE, OR CAUSE TO BE PRO DUCED, ANY EVIDENCE OR PARTICULARS SPECIFIED THEREIN OR ON WHICH THE AS SESSEE MAY RELY, IN SUPPORT OF SUCH CLAIM; (II) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE ( I), IF HE CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDER-STATED M.A.NO.32/KOL/2016 -A/O ITA NO.578/KOL/2015-SMT. PU NIT KAUR DHUPIA A.Y.2005-06 3 THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HA S NOT UNDER-PAID THE TAX IN ANY MANNER, SERVE ON THE ASSESSEE A NOTICE R EQUIRING HIM, ON A DATE TO BE SPECIFIED THEREIN, EITHER TO ATTEND HIS OFFICE OR TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE ON WHICH THE ASS ESSEE MAY RELY IN SUPPORT OF THE RETURN: PROVIDED THAT NO NOTICE UNDER THIS SUB-SECTION SHAL L BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISHED.'; AMENDMENT BY THE FINANCE ACT, 2008, W.E.F. 1.4.2008 . IN SUB-SECTION (2), IN CLAUSE (II), FOR THE PROVISO , THE FOLLOWING PROVISO WAS SUBSTITUTED, 'PROVIDED THAT NO NOTICE UNDER CLAUSE (II) WAS SERV ED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED.'. 4. SINCE THE ASSESSMENT PROCEEDINGS WERE PENDING B EFORE HIM WHEN THE AMENDMENT BY THE FINANCE ACT, 2008 CAME INTO FORCE, THE AO WA S OF THE VIEW THAT AS PER THE AMENDED PROVISIONS OF SEC.143(2) BY THE FINANCE ACT , 2008 REFERRED TO ABOVE, THE LIMITATION OF TIME FOR SERVICE OF NOTICE U/S.143(2) WOULD BE 6 MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN OF INCOME WA S FILED. THAT TIME WOULD EXPIRE ONLY ON 30.9.2008. THE AO WAS OF THE VIEW THAT AT T HE RELEVANT TIME WHEN NOTICE U/S.143(2) WAS ISSUED THE AFORESAID AMENDED PROVISI ONS HAS COME INTO FORCE AND THE REQUIREMENTS OF SERVICE OF NOTICE BEING A PROCEDURA L LAW AND NOT A SUBSTANTIVE LAW, THE SAID AMENDED PROVISIONS WILL APPLY AND THEREFORE TH E SERVICE OF NOTICE U/S.143(2) OF THE ACT WAS WITHIN THE TIME AS CONTEMPLATED IN LAW. THIS VIEW OF THE AO WAS ALSO ENDORSED BY THE CIT(A). 5. THE SUBMISSION OF THE LEARNED COUNSEL BEFORE THE TRIBUNAL WAS THAT LAW APPLICABLE WILL THE LAW THAT PREVAILED DURING THE R ELEVANT AY FOR WHICH THE ASSESSMENT IS SOUGHT TO BE MADE OR AT BEST THE LAW APPLICABLE WILL BE THE LAW AS IT PREVAILED WHEN THE ASSESSEE FILED RETURN OF INCOME AND IN THIS REG ARD PLACED RELIANCE ON THE FOLLOWING TWO JUDICIAL PRONOUNCEMENTS, VIZ., KRISHNA MOHAN BA NIK VS. ITO 232 ITR 339 (GAU.) AND ASHOK B.BAFNA VS. DCIT (2012) 18 ITR (TRIB.) 43 (ITAT) (MUM). IF THE LAW M.A.NO.32/KOL/2016 -A/O ITA NO.578/KOL/2015-SMT. PU NIT KAUR DHUPIA A.Y.2005-06 4 APPLICABLE FOR SERVICE OF NOTICE U/S.143(2) OF THE ACT IS HELD TO BE THE LAW AS IT PREVAILED WHEN THE ASSESSEE FILED HER RETURN OF INC OME THEN THE NOTICE U/S.143(2) OF THE ACT IN THE CASE OF THE ASSESSEE, WAS SERVED ON THE ASSESSEE BEYOND THE TIME LIMIT LAID DOWN IN SEC.143(2) OF THE ACT, AND THEREFORE T HE ORDER OF ASSESSMENT WILL HAVE TO BE HELD AS BAD IN LAW. 6. IN THIS MISCELLANEOUS APPLICATION IT HAS BEEN P OINTED OUT BY THE ASSESSEE THAT INSTEAD OF DECIDING THE AFORESAID ARGUMENT, THE TRI BUNAL PROCEEDED TO DECIDE THE VALIDITY OF SERVICE OF NOTICE U/S.143(2) ON THE ASS UMPTION THAT THE AMENDMENT TO THE PROVISIONS OF SEC.148(2) BY THE FINANCE ACT, 2006 W AS APPLICABLE TO THE PRESENT CASE AND AS PER THE SAID AMENDMENT THE SERVICE OF NOTICE U/S.143(2) OF THE ACT CAN BE MADE AT ANY TIME BEFORE EXPIRY OF TIME LIMIT FOR COMPLET ION OF ASSESSMENT U/S.153(2) OF THE ACT AND ACCORDINGLY HELD THAT THERE WAS A VALID SER VICE OF NOTICE. IT HAS BEEN FURTHER POINTED OUT IN THE MISCELLANEOUS APPLICATION THAT T HE TIME LIMIT FOR SERVICE OF NOTICE U/S.143(2) OF THE ACT AS EXTENDED BY AMENDMENT TO T HE PROVISIONS OF SEC.148(2) BY THE FINANCE ACT, 2006 WAS APPLICABLE ONLY TO RETURN OF INCOME FILED BETWEEN THE PERIOD 1.10.1991 TO 30.9.2005. SINCE THE ASSESSEE IN THE PRESENT CASE FILED RETURN OF INCOME IN RESPONSE TO NOTICE U/S.148 OF THE ACT ON 15.5.2007, THE SAID AMENDMENT HAS NO RELEVANCE TO THE CASE OF THE ASSESSEE. THE TRIB UNAL HAS OVERLOOKED THIS ASPECT AND PROCEEDED ON AN ERRONEOUS ASSUMPTION THAT THE PERIO D OF SERVICE OF NOTICE U/S.143(2) OF THE ACT BY WAY OF AMENDMENT TO SEC.148(2) OF THE ACT BY THE FINANCE ACT, 2006, WAS APPLICABLE TO THE CASE OF THE ASSESSEE. SUCH P ROVISIONS WERE NOT APPLICABLE TO THE CASE OF THE ASSESSEE AS THE RETURN OF INCOME WAS NO T FILED BY THE ASSESSEE IN THE PRESENT CASE BETWEEN THE PERIODS 1.10.1991 TO 30.9. 2005 IN RESPONSE TO NOTICE U/S.148 OF THE ACT. 7. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED SUBMISSIONS MADE IN THE MISCELLANEOUS APPLICATION. THE LEARNED DR RELIED O N THE ORDER OF THE TRIBUNAL. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE BACKGROUND UNDER WHICH THE STATUTORY AMENDMENTS WERE MADE TO THE PROVISIONS OF SEC.148(2) OF THE ACT BY THE M.A.NO.32/KOL/2016 -A/O ITA NO.578/KOL/2015-SMT. PU NIT KAUR DHUPIA A.Y.2005-06 5 FINANCE ACT, 2006 HAVE BEEN SET OUT IN PARAGRAPH 4. 1 AND 5 OF THE ORDER OF THE TRIBUNAL WHICH READS THUS: 4.1. THERE WAS A CONTROVERSY WHETHER NOTICE U/S.1 43(2)OF THE ACT IS MANDATORY WHEN AN ASSESSMENT IS MADE U/S.148 OF THE ACT. THE LEGISLATURE ACCEPTED SEVERAL JUDICIAL PRONOUNCEMENTS HOLDING TH AT NOTICE U/S.143(2) OF THE ACT IS NECESSARY EVEN IN PROCEEDINGS U/S.148 OF THE ACT FOR ASSESSMENT OF INCOME WHICH HAS ESCAPED ASSESSMENT. THE AMENDMENT TO SEC.148(2) OF THE ACT BY THE FINANCE ACT, 2006, IN SECTION 148, IN S UB-SECTION (1),THE FOLLOWING PROVISOS WERE INSERTED AND WERE DEEMED TO HAVE BEEN INSERTED WITH EFFECT FROM THE 1ST DAY OF OCTOBER, 1991, NAMELY: 'PROVIDED THAT IN A CASE (A) WHERE A RETURN HAS BEEN FURNISHED DURING THE PE RIOD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDING ON THE 30TH DAY OF SEPTEMBER, 2005 IN RESPONSE TO A NOTICE SERVED UNDER THIS SECTION, AND (B) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER SUB -SECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SPECIFIED IN THE PROVISO TO SUB-SECTION (2) OF SECTION 143, AS IT STOOD IMMEDIATELY BEFORE THE AME NDMENT OF SAID SUB-SECTION BY THE FINANCE ACT, 2002 (20 OF 2002) BUT BEFORE TH E EXPIRY OF THE TIME LIMIT FOR MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUT ATION AS SPECIFIED IN SUB- SECTION (2) OF SECTION 153, EVERY SUCH NOTICE REFER RED TO IN THIS CLAUSE SHALL BE DEEMED TO BE A VALID NOTICE: PROVIDED FURTHER THAT IN A CASE (A) WHERE A RETURN HAS BEEN FURNISHED DURING THE PE RIOD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDING ON THE 30TH DAY OF SEPTEMBER, 2005, IN RESPONSE TO A NOTICE SERVED UNDER THIS SECTION, AND (B) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER CLA USE (II) OF SUB-SECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SP ECIFIED IN THE PROVISO TO CLAUSE (II) OF SUB-SECTION (2) OF SECTION 143, BUT BEFORE THE EXPIRY OF THE TIME LIMIT FOR MAKING THE ASSESSMENT, REASSESSMENT OR RE COMPUTATION AS SPECIFIED IN SUB-SECTION (2) OF SECTION 153, EVERY SUCH NOTICE R EFERRED TO IN THIS CLAUSE SHALL BE DEEMED TO BE A VALID NOTICE.'; AFTER THE SECOND PROVISO AS SO INSERTED BY CLAUSE ( I), THE FOLLOWING EXPLANATION WAS INSERTED AND WAS DEEMED TO HAVE BEEN INSERTED W ITH EFFECT FROM THE 1ST DAY OF OCTOBER, 2005, NAMELY: 'EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT NOTHING CONTAINED IN THE FIRST PROVISO OR THE SECOND PROVIS O SHALL APPLY TO ANY RETURN WHICH HAS BEEN FURNISHED ON OR AFTER THE 1ST DAY OF OCTOBER, 2005 IN RESPONSE TO A NOTICE SERVED UNDER THIS SECTION.'. M.A.NO.32/KOL/2016 -A/O ITA NO.578/KOL/2015-SMT. PU NIT KAUR DHUPIA A.Y.2005-06 6 5. PROVISO INSERTED IN S. 148 BY THE FINANCE ACT, 2 006 PROVIDES THAT WHERE A RETURN HAS BEEN FURNISHED IN PURSUANCE OF NOTICE UNDER S. 148, BETWEEN 1ST OCT., 1991 AND 30TH SEPT., 2005, AND A NOTICE UNDER S. 143(2) HAS BEEN SERVED AFTER EXPIRY OF TWELVE MONTHS BUT BEFORE MAKING ASS ESSMENT, EVERY SUCH NOTICE SHALL BE DEEMED TO BE A VALID NOTICE. IN CIT VS. M RS. C. MALATHY (2008) 214 CTR (MAD) 173 : (2007) 294 ITR 532 (MAD) IT WAS HEL D THAT AS REGARDS RETURNS FILED WITHIN THE PERIOD 1ST OCT, 1991 TO 30TH SEPT. , 2005, IN RESPONSE TO NOTICE UNDER S. 148, BY VIRTUE OF PROVISO TO S. 148 INSERT ED BY THE FINANCE ACT, 2006, NOTICE UNDER S. 143(2) ISSUED BEYOND 12 MONTHS FROM THE DATE OF FILING RETURN BUT BEFORE EXPIRY OF TIME-LIMIT FOR MAKING ASSESSME NT, REASSESSMENT OR RECOMPUTATION AS SPECIFIED IN SUB-S. (2) OF S. 153, SHALL NOT BE INVALID. IN THE PRESENT CASE THE RETURN OF INCOME IN RESPONS E TO NOTICE U/S.148 OF THE ACT WAS FILED ON 15.5.2008 I.E., BETWEEN THE PERIOD 1-1 0.1991 TO 30.9.2005 AND THEREFORE NOTICE COULD BE ISSUED AND SERVED BEYOND 12 MONTHS FROM THE DATE OF FILING OF RETURN BUT BEFORE EXPIRY OF TIME-LIMIT FO R MAKING ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS SPECIFIED IN SEC.1 53(2) OF THE ACT. THEREFORE THERE CAN BE OBJECTION ON THE GROUND OF NOTICE U/S. 143(2) OF THE ACT NOT HAVING BEEN SERVED WITHIN THE SPECIFIED TIME AND CONSEQUEN TLY THE ASSESSMENT BEING INVALID. WE THEREFORE REJECT THE RELEVANT GROUND O F APPEAL OF THE ASSESSEE IN THIS REGARD. 9. IT CAN BE SEEN FROM THE ABOVE OBSERVATIONS THAT THE DATE OF FILING OF RETURN IN RESPONSE TO NOTICE U/S.148 BY THE ASSESSEE HAS BEEN WRONGLY MENTIONED AS 15.5.2008 WHEREAS THE CORRECT DATE IS 15.5.2007 . THIS IS THE FIRST APPARENT FACTUAL ERROR IN THE ORDER OF THE TRIBUNAL. THE SECOND ERR OR IS THAT THE TRIBUNAL AFTER NOTICING THE TIME LIMIT FOR SERVICE OF NOTICE U/S.143(2) OF THE ACT FOR RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S.148 OF THE ACT BETWEEN THE P ERIOD 1.10.1991 TO 30.9.2005 HAS WRONGLY APPLIED THAT TIME LIMIT TO THE CASE OF THE ASSESSEE. SUCH TIME LIMIT WAS NOT APPLICABLE TO THE CASE OF THE ASSESSEE AT ALL BECAU SE THE ASSESSEE FILED RETURN OF INCOME IN RESPONSE TO NOTICE U/S.148 OF THE ACT ON 15.5.2007. THEREFORE THE TIME LIMIT LAID DOWN IN SEC.143(2) OF THE ACT AS DISCUSSED IN PARAGRAPH 3.2 OF THE TRIBUNALS ORDER EXTRACTED IN PARAGRAPH 3 OF THIS ORDER WOULD ALONE APPLY. THE TRIBUNAL HAS TAKEN THE DATE OF FILING OF THE RETURN AS 1.8.2005 WHICH WAS THE ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE AND APPLIED THE AMENDM ENT TO THE PROVISIONS OF SEC.148(2) WHICH WAS APPLICABLE FOR RETURN FILED BE TWEEN THE PERIOD 1.10.1991 TO 30.9.2005. THE DATE OF FILING OF THE RETURN REFERR ED TO IN SEC.148(2) IS THE DATE OF M.A.NO.32/KOL/2016 -A/O ITA NO.578/KOL/2015-SMT. PU NIT KAUR DHUPIA A.Y.2005-06 7 FILING OF THE RETURN IN RESPONSE TO NOTICE U/S.148 OF THE ACT, WHICH IN THE PRESENT CASE IS 15.5.2007 AND NOT 1.8.2005. THIS WAS A MISTAKE APPARENT ON THE FACE OF THE RECORD. 10. THE QUESTION THAT THE TRIBUNAL OUGHT TO HAVE C ONSIDERED WAS THEREFORE, WHETHER THE LAW AS IT PREVAILED WHEN THE RETURN OF INCOME W AS FILED I.E., AS ON 15.5.2007 WHICH GIVES A TIME LIMIT OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN OF INCOME WAS FILED BY THE ASSESSEE I.E., ON OR BEFORE 31.5.2008 OR THE LAW THAT PREVAILS WHEN THE AO CONDUCTS THE ASSE SSMENT PROCEEDINGS WHEN THE AO ISSUED NOTICE U/S.143(2) OF THE ACT ON 5.9.2008 I.E ., AFTER THE INSERTION OF PROVISO TO SEC.143(2)(II) OF THE ACT BY THE FINANCE ACT, 2008, W.E.F. 1.4.2008 WHEREBY THE TIME LIMIT FOR SERVICE OF NOTICE WAS 6 MONTHS FROM THE E ND OF THE FINANCIAL YEAR IN WHICH THE RETURN OF INCOME WAS FILED BY THE ASSESSEE I.E. , ON OR BEFORE 30.9.2008. 11. WE ARE THEREFORE OF THE VIEW THAT THE ORDER OF THE TRIBUNAL SUFFERS FROM A MISTAKE APPARENT ON THE FACE OF THE RECORD. THE ORDER DATED 09.12.2015 IS RECALLED IN SO FAR AS IT RELATES TO VALIDITY OF SERVICE OF NOTICE U/S 143 (2) OF THE ACT. THE APPEAL IS DIRECTED TO BE FIXED FOR HEARING TO DECIDE THE SAID ISSUE AFTER NOTICE TO THE PARTIES. 12. IN THE RESULT, THE MISCELLANEOUS APPLICATION I S ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON 13.07.2016. SD/- SD/- [P.M.JAGTAP ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13.07.2016. [RG PS] M.A.NO.32/KOL/2016 -A/O ITA NO.578/KOL/2015-SMT. PU NIT KAUR DHUPIA A.Y.2005-06 8 COPY OF THE ORDER FORWARDED TO: 1.SMT. PUNIT KAUR DHUPIA, C/O TAPARIA & CO., 28, BL ACK BURN LANE, 6 TH FLOOR, KOLKATA-700012. 2.I.T.O., WARD-37(2), KOLKATA. 3. C.I.T. (A)- 11, KOLKATA. C.I.T., 13, KOLKATA. 3. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES