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2014 (2) TMI 989 - AT - Income TaxService of Notice u/s 143(2) of the Act - Applicability of Section 292BB of the Act - Whether the notice was issued and served within the time contemplated u/s. 143(2) of the Act - Held that - The notice issued by the AO u/s. 143(2) of the Act in the present case will not fall within any mistake, defect or omission which is in substance and effect in conformity with or according to the intent and purpose of this Act - The requirement of giving of notice because completion of the assessment proceedings cannot be dispensed with by taking recourse to the provisions of Sec.292B of the Act Relying upon Manish Prakash Gupta v. CIT 2014 (2) TMI 657 - ALLAHABAD HIGH COURT & CIT v. Parikalpana Estate Development (P.) Ltd. 2012 (10) TMI 617 - ALLAHABAD HIGH COURT the 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. The provisions of Sec.292BB lay down presumption in a given case - It cannot be equated to a conclusive proof - The presumption if rebuttable - The provisions of section 292BB cannot extend to a case where the question of limitation is raised on admitted factual position in a given case thus, the provisions of section 292BB of the Act will not be applicable to the present case - the assessment proceedings are invalid for the reason that the notice u/s. 143(2) of the Act had not been issued and served within the time limit prescribed by those provisions - The order of assessment is accordingly annulled Decided in favour of Assessee.
Issues Involved:
1. Delay in filing the appeal. 2. Validity of the revised return. 3. Issuance and timing of notice under section 143(2). 4. Applicability of sections 292B and 292BB. Issue-wise Detailed Analysis: 1. Delay in Filing the Appeal: The appeal by the assessee was delayed by about 17 days. The delay was attributed to the hospitalization and subsequent recovery of Mr. K.N. Shivkumar, who was handling the tax matter. The tribunal, after considering the discharge summary and the reasonable cause presented, condoned the delay despite opposition from the learned DR. 2. Validity of the Revised Return: The assessee filed its original return for the assessment year 2008-09 on 01.10.2008, beyond the period prescribed under section 139(1). A revised return was filed on 30.09.2009, claiming exemption under section 10B. However, the Assessing Officer (AO) treated the revised return as non est because the original return was not filed within the due date as per section 139(1). The tribunal referenced section 139(5), which allows for a revised return only if the original return was filed within the prescribed time. The Supreme Court's decision in Kumar Jagadish Chandra Sinha through LRs v. CIT was cited, affirming that a revised return is invalid if the original return was not timely filed. 3. Issuance and Timing of Notice Under Section 143(2): The AO issued a notice under section 143(2) dated 19.08.2010, which was beyond the six-month period from the end of the financial year in which the original return was filed (01.10.2008). The tribunal noted that the statutory time limit for issuing such a notice is mandatory, referencing decisions from the Delhi High Court and the Supreme Court, which emphasize the necessity of issuing a notice within the prescribed time frame. The tribunal concluded that the notice was not issued within the required period, rendering the assessment proceedings invalid. 4. Applicability of Sections 292B and 292BB: The tribunal considered the applicability of sections 292B and 292BB. Section 292B, which addresses procedural defects, was deemed inapplicable because the failure to issue a timely notice under section 143(2) is not a mere procedural defect but a substantive requirement. Section 292BB, which presumes proper service of notice if the assessee participates in the proceedings, was also found inapplicable. The tribunal cited decisions from the Allahabad and Punjab & Haryana High Courts, which clarified that section 292BB does not apply where no notice was issued within the statutory time limit. The tribunal emphasized that section 292BB cannot override the mandatory requirement of issuing a notice within the prescribed period. Conclusion: The tribunal held that the assessment proceedings were invalid due to the failure to issue a notice under section 143(2) within the statutory time limit. Consequently, the order of assessment was annulled, and the other issues raised by the assessee were not considered. The appeal by the assessee was allowed, and the judgment was pronounced in open court on 7th February 2014.
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