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TMI Blog2021 (11) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... rregularity and the same is not curable. Failure of the assessing officer in issuing the notice within the period of limitation under Section 143 (2) of the Act which is a notice giving jurisdiction to the assessing officer to frame assessment cannot be condoned by referring to S.292BB of the Act. We find no ground to interfere with the impugned order of the Tribunal. Substantial question of law in favour of the assessee - I.T.A.No.282/2018 - - - Dated:- 5-10-2021 - HON BLE MRS.JUSTICE S. SUJATHA AND HON BLE MR. JUSTICE RAVI V. HOSMANI APPELLANTS (BY SRI JEEVAN J. NEERALGI, ADV.) RESPONDENT (BY SRI CHYTHANYA K.K., ADV.) J U D G M E N T S. SUJATHA, J., This appeal is filed by the Revenue under Section 260A of the Income Tax Act, 1961 [ Act for short] assailing the order of the Income Tax Appellate Tribunal Bangalore Bench C ['Tribunal' for short] dated 21.11.2017 passed in ITA No.1575/bang/2016 relating to the assessment year 2012-13. 2. The appeal has been admitted by this Court to consider the following substantial question of law: Whether on the facts and in the circumstances of the case, the Tribunal is right in law in quashi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... koned from the date of filing of the reply by the assessee on 08.10.2013. The Tribunal even otherwise ought to have been held that the same is curable under Section 292BB of the Act. In support of his submissions, he referred to the Circular No.1/2009 issued by the CBDT wherein it has been held that the new Section 292BB were applicable for all proceedings pending for all cases from 01.04.2008. Reliance was placed on the following judgments: 1. Padinjarekara Agencies [P.] Ltd., V/s. Commissioner of Income-tax [(2017) 85 taxmann.com 129 (Kerala)] 2. Venkatesan Raghuram Prasad V/s. Income-tax Officer, Non-Corporate Ward-2(3), Chennai [(2018) 94 taxmann.com 249 (Madras)] 3. Aravali Engineers [P.] Ltd., V/s. Commissioner of Income-tax [(2011) 11 taxmann.com 291 (Punjab Haryana)] 4. Commissioner of Income-tax, Bathinda V/s. Panchvati Motors [P.] Ltd., [(2011) 12 taxmann.com 111 (Punjab Haryana)] 5. Learned counsel Sri. Chythanya.K.K., appearing for the respondent assessee would submit that reply dated 08.10.2013 was submitted by the assessee pursuant to the notice issued by the department under Section 142[1] of the Act. The gist of the reply would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under this subsection shall be served on the assessee after the expiry of 86[three] months from the end of the financial year in which the return is furnished. 8. The undisputed facts are that the search was conducted in the case of a search person on 06.02.2012. Pursuant to which Section 153C proceedings were initiated against the assessee. Notice under Section 142[1] was issued on 12.09.2013 calling the assessee to file the return. Reply was filed on 08.10.2013 by the assessee stating that the return of income for the assessment year 2012-13 was already filed on 26.09.2012 enclosing the copy of the same for ready reference. Subsequently, notice under Section 143[2] was issued on 21.10.2013. Financial year has come to an end on 31.03.2013. Six months time would lapse on 30.09.2013. Notice was issued on 31.10.2013. The relevant paragraph of Circular No.1/2013 reads thus: 42.2 Instances have come to the notice of the department, where notices under sub-section (2) of section 143, though issued by registered post within twelve months from the end of the month in which the return was furnished, have been held invalid on the ground that the notice was actually received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yaya .v. Shanabhai Patel [(1987) 166 ITR 163 (SC)] and CIT .v. Chetan Gupta [(2016) 382 ITR 613 (Del)], has observed that without prejudice, even if the assessee were to assume so, to succeed on the question of 292BB and further, presuming a valid objection regarding service of notice under Section 149 of the Act, it would necessitate examination of the assessee s objections on merits, the matter shall have to necessarily travel back to the file of assessing officer to cause service and assessment a fresh, for which a time limit shall run from the date of the said service. 12. In the case of Chetan Gupta supra, admittedly notice was issued within the prescribed period of limitation. The requirement of issue of notice being satisfied, which is the mandate of Section 148(1)- of the Act, it has been observed that once a notice is issued within the period of limitation, jurisdiction becomes vested in the Income Tax officer to proceed to make the assessment. 13. The Hon ble High Court of Punjab and Haryana in the case of Aravali Engineers [P.] Ltd., supra , was dealing with the plea raised that since the notice under Section 143 (2) of the Act was not served within the stipul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction, notice would be deemed to be valid even if there be infractions as detailed in the said section. The scope of the provision is to make service of notice having certain infirmities to be proper and valid if there was requisite participation on part of the assessee. It is, however, t be noted that the section does not save complete absence of notice. For Section 292BB to apply, the notice must have emanated from the Department. It is only the infirmities in the manner of service of notice that the section seeks to cure. The section is not intended to cure complete absence of notice itself. 18. This judgment has a direct bearing on the facts of the present case. In the light of this judgment, it is clear that the infirmities in the manner of service of notice alone would be amenable to under Section 292BB of the Act, but not the complete absence of notice itself. Notice issued beyond the period of limitation partakes the character of absence of notice itself in the eye of law. As such, Section 292BB would not save such a notice dehorse the limitation prescribed. 19. Though the learned counsel for the Revenue contended that Hotel Bluemoon supra was rendered in the regim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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