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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 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.
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 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 – being wife of the assessee in , 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.