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TMI Blog2020 (9) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... and contrary to the law and facts, against weight of evidence and probabilities of the case; 2. The impugned order passed by the Learned CIT(A), to the extent prejudicial to the Appellant, is not justified in law and on facts and circumstances of the case; 3. The Learned CIT(A) has erred in law and on facts in not appreciating that the order of the Learned AO is bad in law and on facts as the notice under section 143(2) of the Act is time barred; 4. The Learned CIT(A) has erred in law and on facts in upholding disallowance of brokerage and commission on sales to the extent of ₹ 13,95,847/-; S. The Learned CIT(A) has erred in law and on facts in upholding disallowance of advertisement expenses of ₹ 4,11,175/-; 6. The Learned CIT(A) has erred in law and on facts in upholding disallowance of 'Business promotion -sales' expenses of ₹ 33,25,375/-; 7. The Learned CIT(A) in upholding additions to the returned income, has erred in not considering submissions made in support of the claim; 8. The Learned CIT(A) has erred in upholding adhoc disallowance; 9. The Learned CIT(A) and AO have erred in not invoking provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Before Ld.CIT(A), assessee alleged that, assessment order passed by Ld.AO dated 20/12/2018 is beyond period of limitation as, time limit for passing assessment order starts from date of original return filed being 28/09/2016. Ld.CIT(A) while considering this issue decided as under: From a reading of the above provisions, it is clear that the if the assessee rectify the defect within the time allowed, then the corrected return can be as a valid return. Therefore, the return dated 28/09/2016 would have remained an invalid return but for the appellant having filed the corrected return on 22/06/2017 in response to the notice u/s 139(9). That being the case, the return filed on 22/06/2017 becomes the valid return and the period of limitation is to be counted from that date. The notice u/s 143(2) was issued on 14/08/2018 i.e. within six months of the end of the year when the valid return was filed and hence the notice u/s 143(2) is held to not have been barred by limitation. Accordingly, the assessment completed pursuant to the issue of the notice u/s 143(2) is valid. The ground of appeal raised by the appellant has no merit and is dismissed as such 5. On merits, Ld.CIT(A), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 139(1) of the Act. The provision does not extend the ambit to date on which revised return or defect if any in the return is rectified. He placed reliance on decision of Hon ble Gujarat High Court in case of Kunal Structures India Pvt.Ltd. vs DCIT, reported in (2020) 113 Taxmann.com 577. 11. On the contrary, Ld.Sr.DR placed reliance on observations of Ld.CIT(A) which reproduced hereinabove. 12. We have perused submissions advanced by both sides in light of records placed before us 13. We have also perused decision relied on by Ld.AR. Hon ble Gujarat High Court had occasion to consider identical situation, as the one before us. It is noted that, Hon ble Court while deciding similar issues by considered decisions rendered by various High Courts. Hon ble Gujarat High Court observed and concluded as under: 16. It may be noted that there is no concept of corrected return of income under the Act. Therefore, in effect and substance, what the notice under subsection (9) of section 139 of the Act does is to call upon the petitioner to remove the defects pointed out therein. Therefore, mere reference to the expression corrected income in the notice under subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference may be made to the said subsection, which reads as under: 143.Assessment. (1) Where a return has been made under section 139, or in response to a notice under subsection (1) of section 142, such return shall be processed in the following manner, namely: xxxxxxx (2) Where a return has been furnished under section 139, or in response to a notice under subsection (1) of section 142, the Assessing Officer or the prescribed income-tax authority, as the case may be, if, considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, shall serve on the assessee a notice requiring him, on a date to be specified therein, either to attend the office of the Assessing Officer or to produce, or cause to be produced before the Assessing Officer any evidence on which the assessee may rely in support of the return: Provided that no notice under this subsection shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. 19. On a plain reading of sub-section (2) of section 143 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted position that the impugned notice under sub-section (2) of section 143 of the Act has been issued on 09.08.2017, which is much beyond the period of limitation for issuance of such notice as envisaged under that sub-section. The impugned notice, therefore, is clearly barred by limitation and cannot be sustained. 21. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned notice dated 09.08.2018 issued under sub-section (2) of section 143 of the Act and all proceedings taken pursuant thereto are hereby quashed and set aside. Rule is made absolute accordingly, with no order as to costs. 14. Ld.Sr.DR could not produce before us any contrary decision by Hon ble jurisdiction High Court. Based on above discussions, we hold the impugned notide dated 14/08/2018 is issued beyond the period of limitation. Respectively following view taken by Hon ble Gujrat High Court in case of Kunal Structures India Pvt.Ltd. vs DCIT (supra), we quash and set aside impugned notice dated 14/08/2018 issued under section 143(2) of the Act, and all proceedings taken pursuant thereto. As we allow Ground 3, other grounds alledged on merits becomes academi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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