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TMI Blog2021 (11) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... end of the AY in which the income was first assessable . In case if we accept the proposition of Ld. CIT(A) then there will not be any finality to the assessments selected for scrutiny under CASS or any other method of selection. Itwill defeat themethod specified in the Act. It is irrelevant when the defect is cured by the assessee but what is relevant is the responsibility of the AO to follow the due procedure set out in the Act. It is his duty to issue the notice u/s 143(2) within the prescribed time limit. The Courts have held that once the AO misses the above time frame to issue the notice, the assessment will be bad in law. With regard to rectification of defect in the RoI filed u/s 139(1) and limitation period to issue notice u/s 143(2) as relying on KUNAL STRUCTURE (INDIA) (P.) LTD. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-2 (1) (2) [ 2020 (2) TMI 725 - GUJARAT HIGH COURT] we are inclined to set aside the order passed by the Ld. CIT(A) and the order passed u/s 143(3) is defective and bad in law. Accordingly, grounds raised by the assessee is allowed. - ITA No. 5849/MUM/2019 - - - Dated:- 31-8-2021 - Shri C.N. Prasad (Judicial Member) And Shri S. Rifaur Rahm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der u/s 143(3) of the Act and submitted detailed submission. The appellant s main contentions are that the notice u/s 143(2) was required to be served on or before 30.09.2017 but the same was served on 10.08.2018 by the AO which was time barred as per the Income Tax Act. The appellant has placed its reliance on the Hon ble Bombay High Court in the case of Prime Securities Ltd Vs Assistant CIT 2009 317 ITR 27 (Bom.) The contentions of the appellant are considered carefully. 4.2 I have gone through the details available on record it is found that the appellant had filed original return of income for AY 2016-17 on 17.10.2016 declaring total income at ₹ 1,55,73,780/-. The said return of income was declared as defective return by the CPC, Bangalore vide its order dated 28.08.2017 wherein the appellant was required to rectify the defects. Accordingly, the said defects were rectified/complied by the appellant on 04.10.2017 and hence, the said return was treated as valid only on 04.10.2017. Since the defects were complied on 04.10.2017. the time limit to issue notice u/s 143(2) of the IT Act is to be considered upto 30.09.2016 as per the provisions of Section 143(2) of the Act r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved upon the assessee on 21.08.2018 is illegal and beyond time. Your petitioner submits that notice u/s 143(2) should have been served on or before 30.09.2017. 7 The order appealed against is bad in law and is against the principle of natural justice. 6. At the time of hearing the Ld. AR submitted that the notice u/s 143(2) issued beyond the period of six months from the date of filing of the return of income. He submitted that defective return u/s 139(9) was issued and time period to issue the notice u/s 143(2) was expired. In response of the above contention, he filed the chronology of events and highlighted the imported date. He submitted that this issue is covered and relied on Kunal Structure (422 ITR 482) and Time Securities (371 ITR 27). 7. On the other hand, the Ld. DR relied on the orders passed by the Ld. CIT(A) in page 4-7 of the order. 8. Considered the rival submissions and material on record. We observe from the information submitted before us that the assessee had filed ROI on 17.10.2016 for the AY 2016-17. This casewas selected for scrutiny under CASS. As per the provisions, the AO has to issue notice and serve on the assessee before expiry of six mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be bad in law. 9. With regard to rectification of defect in the RoI filed u/s 139(1) and limitation period to issue notice u/s 143(2) of the Act, the Hon ble jurisdictional High Court held in the case of Kunal Structure (India) Private Limited v. DCIT [2020] 422 ITR 482 (Guj) as below: A study of the provisions of section 139 of the Income Tax Act, 1961 shows that under sub-section (1) thereof, an assessee is required to file return on or before the due date. If one looks at the language employed in sub-sections (1), (3) and (5) of section 139, a common thread in all the sub-sections is that the assessee is required to file a return of income under those sub-sections. However, from the language employed in sub-section (9) of section 139 of the Act, it does not require any return to be filed by the assessee. All that the section says is that the assessee is required to be given an opportunity to rectify the defect in the return filed by him within the time provided, failing which such return would be treated as an invalid return. Unlike sub-section (5) of section 139 of the Act which requires an assessee to file a revised return of income in case of any omission or wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X
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