2014 (2) TMI 989

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....urred owing to sufficient and reasonable cause. The delay in filing the appeal is therefore condoned. 3. The assessee is a company engaged in the business of computer software development and export. The assessee company filed its return for A.Y. 2008-09 on 01.10.2008 declaring a total loss of Rs.16,15,127 and also claiming deduction u/s. 10A amounting to Rs.1,54,83,511. The assessee also computed tax payable under MAT u/s. 115 JB on the total profits of Rs.1,38,76,848. The return of income was processed u/s. 143(1) of the Act on 27.08.2009 and it resulted in a demand of Rs.2,05,710. 4. The return filed by the assessee on 01.10.08 was beyond the period prescribed u/s. 139(1) of the Act. The assessee filed a revised return on 30.09.2009 in which income from business was claimed as Nil after claiming exemption u/s. 10B of the Act on profits of Rs.1,53,83,511. The revised return was treated a non est by the AO since the original return had not been filed within due date as provided u/s. 139(1) of the Act. In this regard reference may be made to Sec.139(5) of the Act which provides as follows: "(5) If any person, having furnished a return under sub-section (1), or in pursuance....

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....2) of the Act was dated 19.08.2010 and served on the assessee thereafter. 8. The assessee therefore raised a plea before the CIT(A) that the order of assessment requires to be annulled for the reason that no notice u/s. 143(2) of the Act had been issued and served within the period contemplated under proviso to section 143(2)(ii) of the Act. The CIT(A) did not agree with the submissions of the assessee and he held as follows:- "5.1 I have considered the above. Such issue has not been raised before AO, rather all the notices issued by the AO had been responded promptly by attending all fixed dates of hearing. Once participation has been made in the assessment proceeding, here I will quality the word participation with active and prompt and objecting to all proposals of AO and also considered by the AO; the appellant has no legs to stand now and plead that the assessment is time barred because it had been issued beyond the time limit of original return filed on 01.10.2008. In short, non- raising of the issue of time bar before the A.O. and active participation in the assessment proceedings proves that assessee is not an aggrieved one to raise such issue at appellate forum. Ther....

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....o be held to be invalid and order of assessment annulled. In this regard, reliance was placed on the following decisions:- - Manish Prakash Gupta v. CIT, 259 CTR 57 (All) - CIT v. Parikalpana Estate Development (P.) Ltd., (2012) 79 DTR 246 (All) - CIT v. Cebon India Ltd., 347 ITR 583 (P&H) 12. It was further submitted that in the aforesaid decisions, it has also been held that in the absence of a notice u/s. 143(2) of the Act, the provisions of section 292BB of the Act cannot be relied upon by the revenue. It was therefore his submission that the order of assessment should be held to be bad in law and annulled. 13. The ld. DR, on the other hand, while relying on the order of the CIT(Appeals), further placed reliance on the provisions of section 292B and 292BB of the Act and submitted that the assessee having participated in the assessment proceedings, cannot at the appellate stage raise a plea regarding non-service of notice. He also placed reliance on the decision of the Hon'ble Madras High Court in the case of Areva T&D India Ltd. v. ACIT, 294 ITR 233 (Mad), wherein it was held that non-issuance of notice u/s. 143(2) which is a mere procedural irregularity, will no....

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....alid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act. "292BBNotice deemed to be valid in certain circumstances. Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, 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 in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was-- (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner : Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment." 16. As far as section 292B is concerned, we do not think that the notice issued by the AO u/s. 143(2) of ....