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TMI Blog2022 (9) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the expiry of six months from the end of the financial year in which the return is furnished. From a reading of the above notice in conjunction with Section 143(2) and Section 115WE(2) of the Act, there can be no manner of doubt that the above notice was issued in the context of the return filed for fringe benefits by the respondent. In Hotel Blue Moon's case [ 2010 (2) TMI 1 - SUPREME COURT] the question before the Supreme Court was whether issuance of notice under Section 143(2) of the Act within the prescribed time limit is mandatory or not. On due consideration, Supreme Court took the view that such a notice is not a mere procedural requirement, but a mandatory provision. Though the above question was examined in the light of Section 158BC dealing with block assessment following search and seizure, nonetheless Supreme Court upheld the views expressed that Section 143(2) of the Act is mandatory and violation thereof cannot be construed to be a procedural irregularity. Tribunal as followed the aforesaid decision which decision may not be strictly applicable to the facts of the case, nonetheless, we are of the view that the notice dated 17.09.2009 cannot be const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year 2008-09 on 29.09.2008 declaring total loss of Rs.26,18,29,327.00. The return was selected for scrutiny whereafter notices under Section 143(2) and 143(1) of the Act were issued. The matter was heard. In the course of assessment proceedings, assessing officer noted that respondent had shown sales of Rs.210,39,18,689.00 and declared gross loss of Rs.26,20,10,099.00 which worked out to 12.45%. Assessing officer further noted that gross loss admitted by the respondent for the immediately preceding assessment year i.e., 2006-07 was 4.28% and immediately succeeding year i.e., 2007-08 was 0.067%. Details as to claim of various expenditures made by the respondent were called for. Assessing officer further noticed that in one of the group cases namely M/s. Ganga Exim Pvt. Ltd., assessee had declared gross profit of 0.75% for the assessment year 2008-09 while admitting gross profit of 0.65% for the assessment year 2007-08 and 1.14% for the assessment year 2006-07. Holding that respondent had failed to produce any evidence to substantiate its claim of loss, assessing officer rejected the book results and estimated the income of the respondent at 2.5% on the gross receipts of Rs.210 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. We have given our thoughtful consideration to rival pleadings against and in support of the correctness of the impugned assessment on account of Assessing Officer's alleged failure; as per the assessee's stand, in issuing section 143(2) notice within a specified time factor of six months from the end of financial year of furnishing of its return. We find merit in assessee's instant additional ground petition (supra) as per (2012) 137 ITD 26 (Mum) (SB) All Cargo Global Logistics Ltd. Vs. DCIT holding in light of hon'ble apex court's judgment in NTPC Ltd (supra) that this tribunal can very well entertain a pure question of law, in order to determine correct tax liability of an assessee provided all the relevant facts are already on record. 5. We next advert to this Revenue's paper book pages 14 16 containing the alleged section 143(2) notice(s) dt.25.5.2010 and 17.9.2009; respectively. We find no merit in Revenue's foregoing arguments since the said notices pertained to section 115WE(2) Fringe Benefit Tax FBT proceedings (abolished w.e.f. A.Y. 2010-11) than assuming jurisdiction for determining the assessee's correct taxable income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 143(2) of the Act? 11. Section 115WE(2) of the Act deals with income tax on fringe benefits. It was inserted by the Finance Act, 2005, with effect from 01.04.2006 and withdrawn with effect from the assessment year 2010-11. Section 115WA of the Act provides for charge of fringe benefit tax. As per sub-section (1), in addition, to the income tax charged under the Act, there shall be charged for every assessment year commencing on or after the 1st day of April, 2006, additional income tax referred to as fringe benefit tax in respect of the fringe benefits provided or deemed to have been provided by an employer to his employees during the previous year at the rate of thirty percent on the value of such fringe benefits. According to sub-section (2) thereof, even if no income tax is payable by an employer on his total income computed in accordance with the provisions of the Act, the tax on fringe benefits shall be payable by such employer. What are fringe benefits have been explained in Section 115WB of the Act. According to Section 115WD of the Act, without prejudice to the provisions contained in Section 139 of the Act, every employer who has paid or made provision for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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