MAHAMMAD ABDUS SOBHAN,HOOGHLY vs. ITO, WD-24(1), HOOGHLY, HOOGHLY

The preliminary issue therein relates to validity of the intimation issued by the AO u/s 143(1) of the Income tax Act, 1961.

The assessee in the present case is an individual, who filed return of income for the year under consideration on 13.03.2012 declaring total income of Rs.3,95,650/-. The said return was processed by the AO u/s 143(1) and since there was a short payment of tax by the assessee on the income returned, demand of Rs.32,950/- was raised by him. When this demand was sought to be recovered by the AO by sending a letter dated 6th August, 2013 to the assesee, the latter vide letter dated 21.08.2013 replied that there was no intimation received by him u/s 143(1) and in the absence of the same, the demand could not be validly raised against him. The AO therefore sent the intimation dated 30.03.2013 to the assessee by speed post in the month of September, 2013 which was duly served on the assessee on 23.09.2013. According to Abdus Sobhan-A.Y.2011-12 1 the assessee, the said intimation u/s 143(1) was sent by AO beyond the period of one year from the end of the relevant assessment year and the same was barred by limitation. He therefore filed an appeal before ld. CIT(A) challenging the validity of intimation issued by AO u/s 143(1). The ld.CIT(A) however did not find any merit in the stand of the assessee. According to him, the intimation u/s 143(1) was passed by AO on 30.03.2013 itself and in the absence of any other evidence to the contrary, the said date was required to be taken as the date on which the intimation was sent to the assessee. He therefore dismissed the appeal of the assessee by his appellate order dated 07.01.2016 which is impugned by the assessee in the present appeal filed before the Tribunal.

I have heard the rival submissions and perused the materials on record. Although it is true, going by the date of intimation u/s 143(1), that the said intimation was prepared or passed by the AO on 30.03.2013, the fact that remains to be seen is that the same was sent to the assessee by registered post only in the month of September, 2013 i.e. beyond the period stipulated in the second proviso to section 143(1) which clearly provides that no intimation u/s 143(1) shall be sent after the expiry of one year from the end of the financial year in which the return is made. In the present case, the return of income for the year under consideration was filed by the assessee on 13.03.2012 i.e. during financial year 2011-12 and the period available for sending the intimation u/s 143(1) had expired on 31.03.2013. The intimation sent by the AO in the month of September, 2013 thus was barred by limitation and the learned DR at the time of hearing before me has not been able to raise any material contention to dispute this position. He however has contended that in the absence of payment of tax due on the income returned by the assessee, the appeal filed by him before ld. CIT(A) itself was not maintainable as per clause (a) of section 249 (4). It is however observed that the department has neither filed any appeal nor even any cross objection to raise this point and in absence of the same, I cannot entertain the contention raised by the learned DR in this regard at this stage. I, therefore, hold that the intimation sent by the AO u/s 143(1) beyond the period stipulated in the second proviso to section Abdus Sobhan-A.Y.2011-12 2 143(1) is barred by limitation and holding the same to be invalid, I allow this appeal of the assessee.

In the result the appeal of the assessee is allowed.