ASSISTANT COMMISSIONER OF INCOME TAX-1(2), RAIPUR (CG) vs. M/S. RADIUS CORPORATION LIMITED, RAJNANDGAON

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR

BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER

ITA No.197/Rpr/2011 Assessment Year : 2007-2008

ITA No.198/Rpr/2011 Assessment year: 2008-09

Asst. Commissioner of Vs. M/s. Radius Corporation Income Tax -1(2), Raipur. Ltd., 57/58, Vardhman Nagar, Rajnandgaon, C.G. PAN/GIR No.AACCR 7045 R (Appellant) .. ( Respondent)

Assessee by : Shri P.C.Maloo/Abhishek Maloo Jain, AR Revenue by : Shri D.K.Jain, DR

Date of Hearing : 08/01/ 2018 Date of Pronouncement : 11 /01/ 2018

O R D E R Per Pavan Kumar Gadale, JM Both the appeals filed by the revenue are directed against the common

order dated 14.7.2011of the CIT(A)-Raipur, for the assessment years

2007-08 and 2008-09, respectively.

as under:

“Whether on law and facts and in the circumstances of the case, the CIT(A) was justified in holding that the assessment orders are invalid without valid notice u/s.143(2).”

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by the revenue be adjudicated, which goes to the root of the matter. Ld A.R.

had no objection to the admission of above additional ground of appeal

taken by the revenue. Hence, the said Additional ground of appeal being

legal ground is admitted for adjudication in view of the ratio laid down by the

Hon’ble Apex Court in the case of CIT vs. NTPC [229 ITR 383(SC)] and the

parties were allowed to make their submissions thereon.

u/s 148 of the Act on 2.12.2009. Further, the notice u/s.143(2) of the Act

was issued simultaneously on 2.12.2009, which was served on the assessee

on the same date. He submitted that provisions of section 143(2) prescribing

limitation period is not applicable in respect of return of income filed in

response to notice u/s.148 of the Act. Therefore, the CIT(A) erred in treating

the issue of notice u/s.143(2) is invalid and beyond time limit. The ld D.R.

referred to the decision of the Agra Tribunal in the case of Chandra Bhan

Bansal vs DCIT, 79 ITD 639 (Agra), wherein, it was held that provisions of

section 143(2) make it amply clear that proviso to section 143(2) did not

include a return filed in response to notice under section 148. It has limited

itself to the returns filed under section 139 or in response to notice

u/s.143(1). It is significant to note that sections 139, 142(1) and section

148, all these sections provide for filing of returns in their response. By

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including sections 139 and 142(1), within the scope of proviso to section

143(2), the law makers have made it abundantly clear that the limitation

period imposed in proviso to section 143(2) was not applicable to the return

of income filed in response to notice u/s.148. As this is substantive

provision of law, the assessee’s submission in this regard have no force and

the same are rejected. Accordingly, notice u/s.143(2) was validly served

within limitation. Further, ld D.R. referred to the decision of Hon’ble Madras

High Court in the case of CIT vs. Mrs C. Malathy, 294 ITR 532 (Mad),

wherein, it was held that by virtue of proviso to section 148 inserted by the

Finance Act, 2006, notice u/s.143(2) issued beyond 12 months from the

date of filing return but before expiry of time limit for making assessment,

reassessment, or recomputation as specified in sub-section (2) of section

153 shall not be invalid and prayed for allowing the appeal of the revenue.

return of income for both the assessment years on 2.12.2009 an d in

response to notice dated 2.12.2009 u/s.148 of the Act. Whereas, the

notices u/s. 148 and143(2) and were issued on 2.12.2009 but it should have

been issued within the time prescribed u/s.143(2)(ii) of the Act after filing

the return of income. Subsequently, notices u/s.143(2) for both the

assessment years were issued on 18.11.2010. As per proviso to section

143(2)(ii), no notice under clause (2) shall be served after expiry of six

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months from the end of the financial year in which the return of income was

furnished. In the present case the return of income was furnished on

12.12.2009, therefore, notice u/s.143(2) could have been issued upto

30.9.2010, whereas notices were issued on 18.11.2010. Accordingly, notice

u/s. 143(2) of the Act issued on 18.11.2010 is beyond the time limit

prescribed by proviso to section 143(2)(ii) of the Act. Therefore, the ld A.R

urged that since there is no valid notice issued by the revenue, the order of

the CIT(A) in treating the notice as invalid is justified and relied on the order

of the CIT(A).

the case. We find that undisputedly notice under section 148 of the Act and

u/s.143(2) was issued on 2.12.2009 and subsequently, the notice

u/s.143(2) was issued on 18.11.2010, which is beyond the time limit

prescribed by proviso to section 143(2)(ii) of the Act. The issuance of this

notice could not comply the requirement of law. As per the provision, the

notice under section 143(2) of the Act has to be issued only after filing of

the return of income and not earlier. The Ld CIT(A) has held that there is no

valid notice u/s.143(2) of the act, therefore, the completion of reassessment

without a valid notice u/s.,143(2) is not valid. For this proposition, the ld

CIT(A) relied on the decision of Hon’ble Apex Court in the case of CIT vs.

Hotel Blue Moon, 229 CTR (SC) 212, wherein, it has been held that omission

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on the part of the Assessing authority to issue notice under section 143(2)

cannot be a procedural irregularity and the same is not curable and,

therefore, the requirement of notice u/s.143(2) cannot be dispensed with.

We find that the findings and the decision of the CIT(A) are in consonance

with the decision of Hon’ble Supreme Court in the case of Hotel Blue Moon

(supra). Accordingly, we uphold the findings of the CIT(A) and dismiss the

additional grounds raised by the revenue for the both the assessment years.

dealt above, the reassessment order for both the assessment years is also

invalid and, therefore, there is no need to adjudicate the ground on merits

by the CIT(A).

are dismissed.

Order pronounced on 11 /01/2018.

Sd/- sd/- (N.S Saini) (Pavan Kumar Gadale) ACCOUNTANT MEMBER JUDICIALMEMBER Raipur; Dated 11 /01/2018 B.K.Parida, SPS

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Copy of the Order forwarded to : 1. The appellant: Asst. Commissioner of Income Tax - 1(2), Raipur. 2. The Respondent. M/s. Radius Corporation Ltd., 57/58, Vardhman Nagar, Rajnandgaon, C.G 3. The CIT(A)-Raipur 4. Pr.CIT-Raipur 5. DR, ITAT, Raipur 6. Guard file. //True Copy//

BY ORDER,

SR.PRIVATE SECRETARY ITAT, Raipur