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TMI Blog2024 (1) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) 17.09.2018 Due date of issuing sec. 143 (2) [Original ROI] 30.09.2018 Date of issuing sec. 143 (2) notice 22.09.2019 Held notice u/ s. 143 (2) dated 11.08.2018 To be held as time barred 3. On this issue we are guided by the judgment of Jurisdictional High Court of Delhi in the case of SMC Comtrade Ltd. vs ACIT Circle 24(1), 156 taxmann.com 202, WP(C )No. 11875 of 2018 dated 9t h October 2023. For the sake of ready reference the said order of the Hon'ble High Court is also reproduced below:- This writ petition concerns Assessment Year (AY) 2016-17. Via this, writ action the petitioner/assessee seeks to assail notice dated 11-8-2018 [hereafter referred to as "first notice"] issued under section 143(2) and the notice dated 31-8- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner/assessee was served with the first notice under section 143(2) on 11-8-2018, and the second notice on 31-8-2018 under section 142(1) of the Act. 2.8 The petitioner, via response dated 4-9-2018, took the stand that there was no revision of the original return filed on 14-10-2016, that the notice under section 139(5) and compliance thereto cannot be treated on par with the provisions of Section 139(9); that the return was processed under section 143(1) of the Act; and that the notices are invalid and illegal as they were barred by limitation. The point concerning the expiration of limitation was reiterated by the petitioner/assessee via communication dated 11-10-2018. 3. Thereafter, the petitioner/assessee received communicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed by the Supreme Court via order dated 21-7-2008 on grounds of both delay and merit. 6. As against this, Mr Prashant Mehar chandani, learned senior standing counsel, who appears on behalf of the respondent/revenue, submits that a notice under section 143 could only have been issued after the defect was removed, and therefore, the impugned notices were within the time prescribed by the statute. 7. We have heard counsel for the parties. 8. The dates and events adverted to hereinabove are not in dispute. As noted above, the original ROI was filed on 14-10-2016. Two notices were issued which alluded to defects in the ROI. The first notice was issued on 6-2-2017, while the second notice was issued on 10-7-2017. As indicated abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opies of the audited or otherwise profit or loss account have not been attached as required by clauses (e) and (f) of the Explanation. In other words, the statutory provision clearly envisages that in cases where profit and loss account and balance-sheet are not accompanying the return of income, it would be regarded as defective in contradistinction to invalid return. A defective return, therefore, cannot be regarded as invalid return ipso facto. It may assume the character of invalid return if the defect after due notice has not been removed by the assessee. The question is not res integra and fell for consideration of a Division Bench of the Calcutta High Court in the case of CIT v. Bharat Refineries Ltd., [1986] 162 ITR 652. In that cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arded as a question of fact. Moreover, the absence of profit and loss account and balance-sheet from the return is itself has been considered by clause (e) of the Explanation appended to sub-section (9) of section 139 of the Act. Therefore, it cannot be concluded that the return, in fact, was filed on the day when the defect was removed, i.e., on January 3, 1992. The date of filing the return would not change a fortiori. It follows that the period of limitation for issuance of notice under section 143(2) of the Act could be issued only within a period of six months (as prevailing at the relevant time, i.e., the assessment year 1989-90). 7. In view of the above, both the questions are answered against the Revenue and in favour of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer any evidence on which the assessee may rely in support of the return: Provided that no notice under this sub-section 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.]" [Emphasis is ours] 12.1 The financial year, in the case of the petitioner's/assessee's original return, would have ended on 31-3-2017. Six (6) months, as mandated by the proviso, would have ended on 30-9-2017. 13. Undoubtedly, the notice issued under section 143(2) of the Act is time-barred. Consequently, the notice under section 142(1) of the Act will also collapse. The impugned notices are, accordingly, quashed. 14. The writ petition is disposed of in the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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