TaxTMI 
TaxTMI 
2012 (4) TMI 629
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. 4. That the appellant requests for leave to add or amend or alter the grounds of appeal before the appeal is heard and disposed off." 3. The assessee has raised following grounds of appeal: "1 a) That on the facts & circumstances of the case, reassessment proceedings initiated by the Ld. AO by issue of notice u/s 148 of the Act are illegal and bad in law because assessment of the return filed on 13.03.2008 was still pending at the time of issue of notice u/s 148 dated 04.02.2009 since notice u/s 143(2) of the Act could have been issued upto 31.03.2009. b) That notice u/s 148 of the Act is illegal and as such consequent assessment framed is illegal, bad in law and voidab- initio. 2. That without prejudice to the fact that alleged assessment framed by the Ld. AO without assumption of valid jurisdiction is illegal and void ab-initio since notice issue u/s 148 of the Act is illegal and bad in law even otherwise: a) That on the facts & circumstances of the case, Ld. CIT(A), has grossly erred in confirming the addition of ₹ 11,31,004/- as made by the AO by applying 12% on contract receipts as against 8% declared by the assessee. Addition confirmed is illegal and bad in law....
X X X X Extracts X X X X
X X X X Extracts X X X X
....may be admitted. 5. The Ld. DR, on the other hand, did not have any objection to the same. 6. We have heard the rival contentions and perused the facts of the case. The issue with regard to illegality of notice u/s 148 of the Act being a legal issue and in view of the decision of the Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. vs. CIT (supra), the same is admitted. 7. The brief facts of the case, as stated by the Ld. counsel for the assessee are that the assessee is engaged in the business of Civil Construction Contracts. The assessee does not maintain any books of account. The income has been computed from TDS certificates by applying 8% on contract receipts as done in the past. The capital investment made in the venture was made by transfer through cheques drawn on Oriental Bank of Commerce and a loan of ₹ 4,00,000/- was taken. The return was revised by rectifying the omission and mistake on 13.03.2008 declaring income of ₹ 14.23 lacs by applying 8% on contract receipts of ₹ 1,74,87,525/-. The return was processed on 25.03.2008. Proceedings were initiated u/s 147 of the Act on 03.02.2009 and notice u/s 148 of the Act was issued to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e u/s 143(2) of the Act was upto 31.03.2009. The AO issued notice under section 148 of the Act on 04.02.2009. It was argued that notice u/s 148 of the Act cannot be issued when time available for 143(2) of the Act is available. Notice u/s 148 read with section 147 can be issued only when the AO has reason to believe that any income chargeable to tax has escaped assessment for any assessment year and he may subject to the provisions of section 148 to 153 assess or reassess such income. This reopening of assessment by the AO u/s 147 read with section 148 comes into play only when time required u/s 143(2) (ii) had expired. The provisions of section 147/148 cannot be used in a routine and casual manner. Therefore, the notice issued by the AO u/s 148 of the Act is bad in law and the assessment was framed u/s 147/143(3) of the Act is liable to be quashed. 10. The Ld. counsel for the assessee submitted his arguments on merit also that the AO had estimated the income @ 12% of the contract receipts as against 8% declared by the assessee without taking into consideration the past results of the comparable cases. As regards availability of cash of ₹ 15,97,347/-, it was argued that when....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sue notice by the AO u/s 143(2) of the Act. Prior to substitution by the Finance Act, 2008 w.e.f. 01.04.2008, proviso to section 143(2)(ii), as amended by Finance Act, 2003 w.e.f. 01.06.2003 was that no notice under clause (ii) shall be served on the assessee after the expiry of 12 months from the end of the month in which the return is furnished. On the substitution by the Finance Act, 2008 w.e.f. 01.04.2008, there was amendment in the proviso to section 143(2)(ii) where it was substituted that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. As on the date of filing of the return i.e. 13.03.2008, the law prevailed as contained in proviso to section 143(2)(ii) that no notice under clause (ii) shall be served on the assessee after the expiry of 12 months from the end of the month in which the return is furnished. Therefore, as per the said law, the limitation for issuance of notice u/s 143(2) of the Act is up to 31.03.2009. The limitation law is perspective as it does not revive the action which may have become time barred on the date of enforcement of changed law nor the ....