TaxTMI 
TaxTMI 
2021 (11) TMI 505
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....t, 1961 was issued beyond the period of limitation as provided in the section and consequently the assessing authority cannot assume jurisdiction to frame the assessment?" 3. The search action under Section 132 of the Act was conducted in the case of assessee in connection with search in another case of Shri.M.M.Prasanna Kumar and others on 06.02.2012. Accordingly, proceedings under Section 153C were initiated. The Assessing Officer issued notice under Section 142[1] of the Act to the assessee on 12.09.2013 calling for return of income. The assessee filed a reply on 08.10.2013 submitting that the return of income for the assessment year 2012-13 was already filed on 26.09.2012 enclosing the copy of the same for ready reference. The Assessing Officer issued notice under Section 143[2] on 21.10.2013 and concluded the assessment under Section 143[3] read with Section 153C of the Act on 28.03.2014 making an addition of Rs. 11,79,60,000/- towards unexplained loan advanced by the assessee to Sri.Peter Caddy. On further appeal by the assessee before the Commissioner of Income Tax [Appeals], the same came to be dismissed. Being aggrieved, the assessee preferred further appeal before the ....
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....f the same was enclosed along with the reply. The said reply would not come to the assistance of the department to contend that the period of limitation for issuing notice under Section 143[2] would reckon from the said date. In terms of the proviso to Section 143[2], the financial year has come to an end on 31.03.2013, the notice under Section 143[2] was issued on 21.10.2013. The letter dated 08.10.2013 would not extend the period of limitation prescribed under Section 143[2] of the Act. Nextly, it was argued that the plea of 292BB was not raised by the Revenue before the Tribunal. Learned counsel submitted that 292BB would deal with service of notice, if the notice exists, not with respect to a non-existent notice. Referring to clause 42.2 of the CBDT circular dated 27.03.2009, learned counsel submitted that there is difference in issue of notice and service of notice. Section 292BB would deal with the service of notice which was issued well within the period of limitation but found defective in the three circumstances specified therein which could be cured but not in the absence of notice i.e., non-issuance of notice within the prescribed period of limitation. In support of his ....
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....der the section. This is notwithstanding the fact that the assessee has attended the assessment proceedings in response to the notice served on him. Instances have also come to notice where the orders of the Assessing Officer is being quashed on the consideration that there is no evidence of issue or service of notice, even though the assessee and his authorized representative have attended the hearing before the Assessing Officer during the assessment proceedings. Further, the design of the limitation period with reference to the end of the month leads to administrative inconvenience inasmuch as the last day of every month becomes a time barring date." 9. Section 292BB of the Act has come into force with effect from 01.04.2008 and the same reads thus: "Notice deemed to be valid in certain circumstances. 292BB. 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....
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....rio, the Tribunal had refused to entertain the plea raised by the assessee while upholding the findings of the Tribunal. 14. The aforesaid judgments cited by the Revenue would enunciate that the notice issued within the period of limitation, if found not served on the assessee within the stipulated period, i.e. defective service of notice cannot invalidate the assessment, or in other words, the existence of the notice well within the period of limitation prescribed under the provision is sine qua non for invoking Section 292BB of the Act. 15. This view is further fortified by the instructions issued by the CBDT in Circular No.1/2009 dated 27.03.2009 wherein, it has been observed that notices under sub-section (2) of 143 of the Act though issued by registered post within the period of limitation, the same have been held invalid on the ground that the assessee had received the notice after the limitation date. In order to address these issues and to reduce litigation, a new Section, viz., Section 292BB has been inserted and the provision of 143 (2) of the Act has been amended. 16. The parameters set out in Section 292BB of the Act are that the notice was: (a) not se....