MR. CARMO VASCO JACINTO FURTADO,MARGAO vs. ITO, INTERNATIONAL TAXATION, MARGAO
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Income Tax Appellate Tribunal, PANAJI BENCH, PANAJI
Before: SHRI R.S. SYAL & SHRI S.S.VISWANETHRA RAVI
आदेश / ORDER
PER R.S.SYAL, VP :
These two appeals by different but related assessees relate to
the assessment year 2008-09. Since a common issue is raised in
2 ITA Nos.21 & 22/PAN/2021
these appeals, we are, therefore, proceeding to dispose them off by
this consolidated order for the sake of convenience.
The facts in the case of Carmo Vasco Jachinto Furtado (ITA
No.21/PAN/2021) are that the assessee filed his return declaring
total income at Rs.2,26,370/-. The Assessing Officer (AO) initiated
re-assessment proceedings and completed the assessment u/s.143(3)
r.w.s.147 at a total income of Rs.64,18,846/-. The ld. CIT(A)
passed the order. Before the Tribunal in the first round, it was
contended on behalf of the assessee that the AO did not issue any
notice u/s.143(2) within the stipulated time. The ld. DR also
admitted in such proceedings that this issue was not adjudicated by
the ld. CIT(A) in his order dt. 19-03-2014. Consequently, the
Tribunal remitted the matter to the ld. CIT(A) for disposing of the
assessee’s objection regarding issuance of notice u/s.143(2). In the
instant round of proceedings, the assessee furnished a chart, as
reproduced at page 3 of the impugned order, stating that notice
u/s.148 was issued on 15-09-2011 pursuant to which the return was
filed by the assessee on 12-10-2011. Thereafter, the reasons were
furnished by the AO on 21-10-2011. The first notice u/s.143(2) was
issued on 11-10-2012. It was contended that such a notice
u/s.143(2) was time barred. The ld. CIT(A) took note of the factual
position to hold that the defect was curable u/s.292BB of the Act.
3 ITA Nos.21 & 22/PAN/2021
Having heard the rival submissions and perused the relevant
material on record, it is found as an admitted position that the
assessee furnished the return for the year under consideration on
12-10-2011. Section 143(2) provides that notice under the section
can be served within six months from the end of the relevant
financial year in which the return is furnished. Such a period of six
months expired on 30-09-2012. The AO issued notice after such
time period on 11-10-2012. The Tribunal, in its order in the first
round, has remitted the matter to the file of ld. CIT(A) for
considering the issue as to whether notice u/s.143(2) was issued
within the prescribed time. The said order of the Tribunal has
attained finality inasmuch as no material has been placed on record
to demonstrate that the order has been reversed or modified in any
manner. In view of this fact, the order passed by the Tribunal
became binding upon the ld. CIT(A) who was required to examine
the only issue restored to him and find out whether notice u/s.143(2)
was issued within the prescribed time or not. Section 292BB was
not subject matter of the dispute before the Tribunal inasmuch as
this section has not been referred to in the Tribunal order. Section
292B provides that where an assessee has appeared in any
proceeding, it shall be deemed that any notice under any provision
of this Act, which is required to be served upon him, has been duly
4 ITA Nos.21 & 22/PAN/2021
served upon him in time and such assessee shall be precluded from
taking any objection in any proceeding or inquiry under this Act
that the notice was not served upon him or was not served upon him
in time. There is a proviso attached to the section which says that
nothing contained in this section shall apply where the assessee has
raised such an objection before completion of such assessment.
There is nothing in the Tribunal order to indicate that the Revenue
took a stand before the Tribunal in the first round that the case of
the assessee was not falling in the proviso to section 292BB.
Further, there is no reference to this provision in the order of the
Tribunal as well. As such, the examination qua the applicability of
section 292BB was outside the purview of ld. CIT(A) in giving
effect to the Tribunal order in the second round. Since the only
issue was about considering whether notice u/s.143(2) was issued
within the stipulated period and it has been abundantly seen that
such notice was issued beyond the period as prescribed in the
statute, we are satisfied that the structure of reassessment could not
have been created on a time barred notice issued u/s.143(2). We,
therefore, set-aside the impugned order passed u/s.143(3) r.w.s. 147
and the consequential impugned order.
Both the sides are in agreement that the facts and
circumstances of the other appeal – ITA No.22/PAN/2021, being
5 ITA Nos.21 & 22/PAN/2021
wife of the assessee in ITA No.21/PAN/2021, are mutatis mutandis
similar. Following the same view, we set-aside the assessment and
the impugned order as well.
In the result, both the appeals are allowed. Order pronounced in the Open Court on 13th September,
2023.
Sd/- Sd/- (S.S.VISWANETHRA RAVI) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; िदनांक Dated : 13th September, 2023 सतीश
आदेश की �ितिलिप अ�ेिषत/Copy of the Order is forwarded to: अपीलाथ� / The Appellant; 1. ��थ� / The respondent 2. 3. The Pr.CIT concerned 4. DR, ITAT, Panaji Bench, Panaji गाड� फाईल / Guard file. 5.
आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune
6 ITA Nos.21 & 22/PAN/2021
Date 1. Draft dictated on 11-09-2023 Sr.PS 2. Draft placed before author 12-09-2023 Sr.PS 3. Draft proposed & placed before JM the second member 4. Draft discussed/approved by JM Second Member. 5. Approved Draft comes to the Sr.PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *
