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TMI Blog2016 (9) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... on service of the notice u/s.143(2) of the Act within the time limit prescribe vide proviso to said sub-section, as Sec. 292BB of the Act is applicable from the A.Y. 2008-09. In this case, admittedly, the A.O. has has served the notice u/s. 143(2) on 30.09.2008 i.e. after the expiry of twelve months from 24.07.2007 i.e. the date of filing of return of income. We find no merit in the plea of the Ld. D.R. that the notice was issued after 1.4.2008 hence provision of section 292BB are applicable as amendment is effective for AY 2008-09 onwards only as discussed above. We, therefore, hold that assessment order passed by the A.O. u/s.143(3) is bad in law and we accordingly cancel the same - I.T.A. No. 42/Ind/2015 - - - Dated:- 25-7-2016 - SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER For The Appellants : Shri K.C. Agarwal, CA For The Respondent : Shri Mohd. Javed, SR. DR ORDER PER O.P. MEENA ACCOUTANT MEMEBR. This appeal is filed by the assessee against the order of ld. Commissioner of Income-tax (Appeals)-I, Indore [hereinafter referred to as the CIT(A)] dated 24.09.2014 and pertains to Assessment Year 2007-08 as against appeal de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly. The provision of section 292BB is curative in nature and would cure all deficiencies regardless of the fact that they were served before 01.04.2008. 4. The learned counsel for the assessee submitted that notice u/s. 143(2) was issued beyond time limit prescribed in the statute and the revenue authorities cannot take the shelter of sec.292BB of the Act as the said section is applicable from the A.Y. 2008-09 and not prior to that. He submits that service of the notice u/s.143(2) is not procedural irregularity but being it is a mandatory, non service of the same is illegality which is non-curable. He pleaded for cancelling the assessment order on this ground. The ld. A.R. also placed his heavy reliance on the following decisions: Kuber Tobacco Products P Ltd. Vs. DCIT (120 TTJ557/117 ITD2 (SB-Del), CIT Vs. Bharat G Patel (2014)(2) TMI517(Guj), ITO vs. Mohd Khaliq 60 DTR196 (Lucknow)(Trib), Bipin Kumar Tandon vs. ITO (ITAN2487/Ahd/2010) Ahmedbad, Ashok B Bafana vs. DCIT 18ITR (Trib)43(Mum), DCIT Vs. Shrikant Rathi 19TTJ207 (Indore), Vinay Kumar Ramawat vs. CIT 19 TTJ328 (Indore), CIT vs. Premier Capital Market Investment Ltd. 275 ITR 260 (MP), CIT Vs. Metachem Industries 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edural law. No doubt, issue and service of notice though may relate to procedural law, but where procedural statute creates a new disability or obligation and imposes new duties in respect of transactions already accomplished, then the statute cannot be construed to have retrospective effect. 41. It has already been pointed out that issue and service of notice in the manner prescribed by the statute have played a vital role in determining the validity or otherwise of assessment/reassessment and other proceedings under the Act and where the Courts have found defect either in the notice or in its proper service, the validity of assessment/ reassessment and other proceedings has been struck down by the Courts subject, of course, to s. 292B of the Act introduced w.e.f. 1st Oct., 1975. Thus, to challenge the validity of a particular action of the Department of making assessment or reassessment on the basis of invalidly issuance/service of notice had become right of litigant assessee during the course of appellate proceedings even though such contention was never raised during the course of assessment proceedings. Instances of striking down the validity of assessment and reassessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Surcharge Act came into force only from 1st Sept., 1957 and, therefore, it does not have retrospective effect and surcharge could not be levied for asst. yr. 1957-58. Such contention of the assessee was rejected by the AO as well as by the first appellate authority. However, the Tribunal held that surcharge could not be levied as Surcharge Act did not have retrospective operation unless there was a specific provision therein to that effect and the question of law was referred to Kerala High Court to state that whether surcharge could be levied for asst. yr. 1957- 58. The Hon'ble High Court decided the question in favour of the Revenue and, thus, the matter went to Hon'ble Supreme Court and their Lordships of Hon'ble Supreme Court have observed that the law is wellsettled that the IT Act as it stands amended on the Ist April of any assessment year must apply to that assessment year. Any amendments in the Act which come into force after the 1st day of April of an assessment year, would not apply to that assessment year, even if the assessment is actually made after the amendments come into force. Their Lordships referred to the earlier decision of apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Finance Act of 1946 that imposed the tax for the asst. yr. 1946-47, the total income had to be computed in accordance with the provisions of the IT Act as on 1st April, 1946; that as the amendments made by the Amendment Act of 1946 w.e.f. 4th May, 1946, were not retrospective, they could not be taken into consideration merely because the assessee was assessed after that date and that the assessee was not liable to pay tax on the sum because the fourth proviso to s. 10(2)(vii) of the IT Act under which it was sought to be taxed was not in force in respect of the asst. yr. 1946-47. 44. If the present issue is considered in the light of the above decision of Hon'ble Supreme Court, then, it has to be held that s. 292BB is applicable to asst. yr. 2008-09 and subsequent years. Therefore, answer to the second aspect of the question is that assessee is precluded from taking such objection for and from asst. yr. 2008-09. 45. Summarising our findings, we hold as follows : (i) Sec. 292BB even if it is procedural it is creating a new disability as it precludes the assessee from taking a plea which could be taken as a right, cannot be construed retrospectively as the same is m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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