TaxTMI 
TaxTMI 
TaxTMI 
2012 (8) TMI 955
X X X X Extracts X X X X
X X X X Extracts X X X X
.... objection before the passing of the assessment order and despite the provisions of section 292BB of the Act ?" Since the aforesaid the questions are inter-connected, therefore, we have considered all the three questions together. 2. The facts in brief are that one Khurana Group is involved in construction business. A search was made on Khurana Group on 25.7.2002 at the premises of Shri Sudhir M. Khurana and during the search conducted under Section 132 of the Income Tax Act, 1961 (for short 'the Act'), papers relating to Panorama Builders were found and seized. Therefore, the Deputy Commissioner of Income Tax, Central Circle 1 (2), Ahmedabad by his letter dated 30.7.2004 sent intimation that proceedings under Section 158BD be initiated against the assessee, namely, Panorama Builders Private Limited. Accordingly, the Assessing Officer issued a notice under section 158BD read with section 158BC of the Act on 10.9.2004 which was served on the assessee. In response, the assessee filed its return of income in Form No.2-B on 6.10.2004 declaring undisclosed income at Rs.NIL. Thereafter, a notice under section 143(2) was issued on 6.7.2006 and subsequently on 14.7.2006, a notice ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uld be time barred and it will render the proceedings initiated by the Assessing Officer null and void. The CIT (A) by his order dated 28.9.2007 allowed the appeal and deleted the additions made by the Assessing Officer. 5. In the appeal filed by the Revenue the Tribunal had recorded a finding of fact that it was not disputed by the Revenue that notice under section 143(2) was issued to the assessee beyond the period of 12 months from the end of the month in which return was filed. The proviso to section 143(2) lays down that no notice under section 143(2) shall be served upon the assessee after the expiry of 12 months from the end of the month in which return is furnished. The Tribunal held that once the notice under section 143(2) was not served upon the assessee within the prescribed time, the whole block assessment order would be null and void and bad in law. Thus, the Tribunal by order dated 2.7.2010 dismissed the appeal filed by the Revenue. 6. Learned counsel Ms. Paurami Sheth appearing for the Revenue has urged that the assessee has not challenged that the notice under section 143(2) of the Act had not been issued and served within a period of 12 months from the end of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uted that by inserting section 292BB which is a procedural provision, a legal fiction has been created which cures the defect in the service of notice, if the assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment. But a question arises as to whether section 292BB would be applicable retrospectively or prospectively. Normally, the insertion of a new section in the Act has to be held prospective in nature unless the legislative intent is clear that the new section was inserted to operate retrospectively. Had the legislature intended that section 292BB should apply retrospectively, then it would have specifically said so in the section itself. In absence of any indication in the section that it will apply retrospectively to pending proceedings, we are of the opinion that it would apply prospectively. 10. Even assuming arguendo that section 292BB applied retrospectively and on 1.4.2008 it applied to the appeal filed by the Revenue which was pending before the Income Tax Appellate Tribunal (for short 'the Tribunal') then what will be the effect of the new section. On a close scrutiny of section 292BB, we find that it cures the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ny notice on the assessee within the time frame fixed by the proviso to section 143(2) of the Act. No doubt, the assessee had not raised any objection before the Assessing Officer with regard to validity of notice under section 143(2), but in appeal before the CIT(A), he had raised this question which had been accepted by the CIT(A) and the Tribunal has also affirmed the finding. The assessee could have challenged the notice issued 6.7.2006 under section 143(2) before CIT(A) as it was related with the jurisdiction of the Assessing Officer. The question raised by the assessee went to the root of the power and jurisdiction of the Assessing Officer, who had no power to issue the notice under section 143(2) after the expiry of 12 months statutory period from the end of the month in which return was furnished by the assessee under section 139 of the Act. 13. In this tax appeal, we find that on 6.10.2004 the assessee had furnished his return under section 139. The notice under section 143(2) could be issued by the Assessing Officer, [as per the provisions as existed in the year 2004, 2005 and 2006] within 12 months from the end of the month in which return is furnished, that is to say o....