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TMI Blog2016 (7) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... e and applied the amendment to the provisions of Sec.148(2) which was applicable for return filed between the period 1.10.1991 to 30.9.2005. The date of filing of the return referred to in Sec.148(2) is the date of 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. The question that the Tribunal ought to have considered was therefore, whether the law as it prevailed when the return of income was 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 31.5.200 or the law that prevails when the AO conducts the Assessment 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 end of the financial year in which the return of income was filed by the Assessee i.e., on or befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .5.2007 when a letter was filed before AO requesting the return originally filed on 1.8.2005 to be treated as a return filed in response to notice u/s.148 of the Act. As per the law as it prevailed when the return of income was filed i.e., as on 15.5.2007, the service of notice u/s.143(2) of the Act ought to have been made on or before 31.5.2008. In normal circumstances, there would have been no difficulty in coming to the conclusion that the period of limitation for service of notice u/s.143(2) of the Act was 31.5.2008 but the same was served only on 5.9.2008 and therefore the entire assessment has to be held to be bad in law for non-service of notice u/s.143(2) of the Act within the period of limitation laid down 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 section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,- (i) where he has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant 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 regard placed reliance on the following two judicial pronouncements, viz., Krishna Mohan Banik Vs. ITO 232 ITR 339 (Gau.) and Ashok B.Bafna Vs. DCIT (2012) 18 ITR (Trib.) 43 (ITAT) (Mum). If the law 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 income 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 the order of assessment will have to be held as bad in law. 6. In this miscellaneous application it has been pointed out by the Assessee that instead of deciding the aforesaid argument, the Tribunal proceeded to decide the validity of service of notice u/s.143(2) on the assumption that the amendment to the provisions of Sec.148(2) by the Finance Act, 2006 was 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... welve months specified in the proviso to sub-section (2) of section 143, as it stood immediately before the amendment of said sub-section by the Finance Act, 2002 (20 of 2002) but before the expiry of the time limit for making the assessment, reassessment or recomputation as specified in subsection (2) of section 153, every such notice referred 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 period 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 clause (ii) of sub-section (2) of section 143 after the expiry of twelve months specified 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 recomputation as specified in sub-section (2) of section 153, every such notice referred 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 deeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessee. Such time limit was not applicable to the case of the Assessee at all because 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 amendment to the provisions of Sec.148(2) which was applicable for return filed between the period 1.10.1991 to 30.9.2005. The date of filing of the return referred to in Sec.148(2) is the date of 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 considered was therefore, whether the law as it prevailed when the return of income was 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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