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TMI Blog2015 (12) TMI 1767X X X X Extracts X X X X X X X X Extracts X X X X ..... ound No. 3 the assessee has challenged the findings of Commissioner of Income Tax (Appeals) in confirming the addition of Rs. 17,50,000/- on account of short term capital gain and Rs. 24,39,063/- as long term capital gain arising from sale of land. 3. The brief facts of the case are : The assessee is an individual and is working as electrical contractor. The assessee filed his return of income for the assessment year 2008-09 on 12-12-2008 (12-10-2008 as per assessment order) declaring total income of Rs. 3,71,730/-. Thereafter, the assessee filed revised return of income on 11-05-2009 declaring total income of Rs. 1,50,090/-. The case of the assessee was selected for scrutiny and accordingly notice u/s. 143(2) was issued to the assessee on 18-08-2010. During the course of scrutiny assessment the Assessing Officer made addition of Rs. 24,39,063/- on account of long term capital gain arising from sale of land situated at Gat No. 77, Kasar Amboli, Tal.-Mulshi, Distt.-Pune. The Assessing Officer further made addition of Rs. 17,50,000/- as short term capital gain on sale of capital asset i.e. land. Aggrieved by the assessment order dated 31-12-2010 passed u/s. 144 of the Act, the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond the period of limitation, the assessment made in pursuance thereof is invalid. The issuance of notice u/s. 143(2) within the prescribed time limit is mandatory and the requirement of notice u/s. 143(2) cannot be dispensed with. In support of his submissions the ld. AR placed reliance on the decision of Hon'ble Supreme Court of India in the case of ACIT Vs. Hotel Blue Moon reported as 321 ITR 362 (SC). The ld. AR further draws support from the decision of Hon'ble Punjab and Haryana High Court in the case of CIT Vs. Cebon India Ltd. reported as 347 ITR 583 (P&H) wherein it has been held that where notice u/s. 143(2) has not been served on the assessee, the assessment is void. The Hon'ble High Court has further observed that absence of notice is not curable u/s. 292BB of the Act. In so far as on merits of the case, the ld. AR submitted that the assessee has not sold the land in question during the period relevant to the impugned assessment year. The authorities below have erred in holding that the assessee is liable for long/short term capital gains tax on the sale of land. 5. Au contraire Shri B.C. Malakar representing the Department vehemently supported the find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 143(2) of the Act it is essential to have glance at the dates and events and the relevant provisions of the Act. Dates Events 31-07-2008 Due date for filing return of income u/s. 139(1) of the Act for the assessment year 2008-09. 12-12-2008 Original return of income filed by the assessee. 11-05-2009 Revised return of income filed by the assessee. 18-08-2010 Notice u/s. 143(2) issued by the Assessing Officer. 8. The provisions regarding filing of revised return of income are contained in section 139(5) which are reproduced here-in-under: "[(5) If any person, having furnished a return under sub-section (1), or in pursuance of a notice issued under sub-section (1) of section 142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier: Provided that where the return relates to the previous year relevant to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, the reference to one year aforesaid shall be construed as a reference to two years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) are as under: "11. The first question is whether a person who files a return under section 139(4) is entitled to file a revised return before the assessment is made. We think, not. The furnishing of a revised return is provided by sub section (5) of section 139. According to this sub-section, 'any person having furnished a return under sub-section (1) or sub-section (2)' may furnish a revised return at any time before the assessment is made if he discovers any omission or any wrong statement in the original return. The very fact that this right is given to a person who has filed a return under sub-section (1) or sub-section (2) of section 139 means by necessary implication that such a right is denied to a person who files the return under section 139(4). The High Court has, however, taken the other view relying upon the language of clause (c) of sub section (1) of section 153. Sub-section (1) of section 153 prescribes the time limits for completing the assessment. In the present case, it is not in dispute, the period allowed for making the assessment is four years from the end of the relevant assessment year as provided by section 153(1)(a)(i ). Section 153(1)(c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he original return on 11-05-2009. The Assessing Officer issued notice u/s. 143(2) on 18-08-2010. As per the provisions of section 143(2) no notice shall be served on the assessee after the expiry of six months from the end of financial year in which the return is furnished. Since, the revised return filed by the assessee is invalid and non-est in eye of law, the period of limitation for issuing notice u/s. 143(2) has to be calculated from the date of filing of original return. The original return was filed on 12-12-2008 i.e. in the financial year 2008-09 the period of limitation for issuing notice u/s. 143(2) with reference to original return comes to an end on 30-09-2009. Therefore, the notice was clearly issued beyond the statutory period of limitation. Since, the notice issued u/s. 143(2) is barred by limitation, no valid assessment could have been made on the assessee by Assessing Officer in the absence of valid notice u/s. 143(2) of the Act. 13. The Hon'ble Supreme Court of India in the case of ACIT Vs. Hotel Blue Moon (supra) while dealing with the case where assessment was made in the case of search proceedings had occasion to consider the question regarding issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be curable under s. 292BB of the Act. 6. In view of above, no substantial question of law arises. 7. The appeal is dismissed." In the present case, the notice u/s. 143(2) was issued and served after the elapse of statutory time limit as envisaged u/s. 143(2) of the Act. The defect in issue of notice is not curable, thus the notice is invalid. The provisions of section 292BB would not help the department to escape from mandatory provisions of the Act. 15. In view of the facts of the case and the law laid down by the Hon'ble Apex Court, we are of the considered opinion that the notice issued u/s. 143(2) by the Assessing Officer was barred by limitation and was thus invalid. The proceedings arising from the said notice are also vitiated. Thus, the assessment order passed in pursuance thereof is annulled. The ground Nos. 1 and 2 raised in the appeal of the assessee is allowed. 16. Since, the appeal of the assessee has been allowed on ground Nos. 1 and 2, the submissions made by the assessee on merits have become academic thus, requires no further adjudication. 17. In the result, the appeal of the assessee is allowed. Order pronounced on Wednesday, the 30th day of Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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