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TMI Blog2017 (10) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... cted for scrutiny and statutory notices u/s 143(2) and 142(1) of the Act, were issued. The assessee neither appeared nor filed any details before the A.O. Therefore, the A.O. passed exparte assessment order u/s 144 of the Act, on 15-12-2008 determining the total income of Rs. 5,47,84,057/-, inter alia making additions/ disallowaces towards purchases, Bad debts, commission, travelling expenses, miscellaneous expenses and liabilities. 3. Aggrieved by the assessment order, the assessee has preferred an appeal before the CIT(A). The assessee has filed certain additional evidences before the CIT(A). The CIT(A) forwarded additional evidences to the A.O. for his verification and comments. The assessee again did not appear before the A.O. to justify additional evidences. The CIT(A), based on the remand report dismissed appeal filed by the assessee and upheld addition made by the A.O. The assessee carried the matter in further appeal before the ITAT. The ITAT, in ITA No. 773/M/2012 dt. 27-4-2012, restored the matter back to the CIT(A) and direct the CIT(A) to pass fresh order after obtaining remand report from the A.O. During the second round of litigation, the assessee has filed additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade towards disallowance of purchases, disallowance of bad debts, adhac disallowance of travelling expenses, miscellaneous expenses and addition towards liabilities. However, allowed partial relief towards disallowances of commission by allowing relief to the extent of Rs. 21,40,339/- and confirmed balance amount of Rs. 38,59,661/-. Thus, the CIT(A) partly allowed appeal filed by the assessee. Meanwhile, the A.O. levied penalty u/s 271(1)(c) for concealment of particulars of income. The CIT(A) for the detailed discussion in his order dated 4-10-2013, confirmed penalty levied by the A.O. to the extent of addition confirmed towards commission and deleted penalty levied on all other additions/disallowances. Aggrieved by the CIT(A) orders, the assessee as well as the revenue are in appeal before us. 5. The Ld. D.R. submitted that the ld. CIT(A) erred in holding that notice issued u/s 143(2) was bad in law without appreciating the facts that the law as on the date of issue of notice was very clear in as much notice u/s 143(2) shall be issued within six months from the end of the financial year in which the return is furnished. The ld. D.R. referring to the provisions of section 143(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et us understand, proviso to section 143(2) before amendment and after amended w.e.f. 1-4-2008. The proviso before amendment by the finance Act, 2008 w.e.f. 1-4-2008, makes it clear that notice u/s 143(2) shall be issued within 12 months from the end of the month in which return was filed. The amendment proviso w.e.f. 01-04-2008 makes it clear that no notice shall be issued after the expiry of six months from the end of the financial year in which return was furnished. The ld. D.R. argued that the law stood in the statute book on the date of issue of notice shall be taken in to account and hence notice issued by the A.O. is as per the amended proviso to section 143(2), therefore it is well within the prescribed limits. In the given facts and circumstances of the case, the question that needs to be answered is whether pre amended or amended proviso to be considered for issue of notice u/s 143(2) for return of income filed for the assessment year prior to the amendment of proviso to section 143(2) w.e.f. 1-4-2008, by the finance Act, 2008. This controversy has been settled by the Hon'ble Allahabad High Court, in the case of Tulsi Food products vs. DCIT (2016) 380 ITR 192, wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the end of the month in which the return was filed, expires in July 31,2008, so a notice was supposed to be served maximum on / or before August 1, 2008, but it was given on September 26, 2008. It is belated less than about two months. When the notice was issued after the expiry of the period of limitation, the effect of proceedings is void as per the ratio laid down by the Gujarat High Court in Deputy CIT v. Mahi Valley Hotels and Resorts [2006] 287 ITR 360 (Guj). It is well-settled that if any notice issued by the Department would become void for want of jurisdiction as per the ratio laid down in the case of CIT v. Kurban Hussain Ibrhimji Mithiborwala [1971] 82 ITR 821 (SC). In view of the above, it appears that the impugned order / notice were issued by the Department were not within the period prescribed and it was barred by about less than two months, therefore, the same cannot be sustained in the eye of law. In view of the above, the petition filed by the petitioner succeeds and allowed. The impugned order dated March 24, 2009, passed under section 144A of the Act, and the impugned notice dated September 26, 2008, passed under section 143(2) and section 115WD are s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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