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TMI Blog2017 (12) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice it to state that pursuant to a search in the premises of the assessee on 11.11.1999, a notice under Section 158BC of the Act was issued by the Assessing Officer on 23.05.2000. In response to the said notice, the assessee filed return of income in Form No.2B on 24.07.2000. The notice under Section 143(2) of the Act. Dated 27.02.2001 was served on the assessee on 03.08.2001; three days after the limitation period, as prescribed under the Proviso to Section 143(2) of the Act. 2. Section 143(2) as was in existence at the relevant point of time is as follows:- "Where a return has been made under section 139, or in response to a notice under subsection( 1) of section 142, the Assessing Officer shall, if he considers it necessary or exped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel appearing for the assessee however would contend that Hotel Blue Moon is in his favour. 4. A reading of Hotel Blue Moon would indicate that the issue decided was as to "whether service of notice on the assessee under Section 143 (2) within the prescribed period is a prerequisite for framing the block assessment under Chapter XIV-B of the Income Tax act, 1961" (sic-para 4). The Tribunal, considering the appeal from the block assessment found that it is only a procedural irregularity and the same was curable. The High Court of Guwahati reversed the order of the Tribunal finding the provisions under Section 142 and sub-section (2) and (3) of Section 143 of the Act to have mandatory application. It was argued by the department that Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussed and answered and not what can be logically deducted there from. More importantly the proviso speaks of 'service' and it cannot, by any interpretative process, be understood as 'issued'. It cannot at all be said that the Hon'ble Supreme Court had laid down that what is contemplated under Section 143(2) is only issuance of notice and not service within the expiry of 12 months from the end of the month, in which return is furnished; failing which it would be hit by limitation. 6. In I.T.A No.65 of 2015 the Division Bench was concerned with a reopening of assessment, under Section 147 on the ground of escapement of income. On notice of reopening issued, with reasons recorded under section 148, the assessee filed its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a notice within the 12 month period as provided under Section 143(2) of the Act. Herein, though a contention is raised that the notice was dated prior to the limitation period, it was served only after the period of limitation, as admitted by the department before the Tribunal. Whether it is three days, three months or three years, if the notice is served after the limitation period, there could be no further proceedings taken. We are inclined to agree with the order of the Income Tax Appellate Tribunal and answer the question in favour of the assessee and against the Department. 8. The learned Senior Counsel would then submit that the assessee never raised this ground before the assessing officer or the first appellate authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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