S/s. 143(2), 292B, 292BB – Where a revised return filed is treated as non-est since the original return was not filed within due date mentioned in section 139(1), the period of issue of notice u/s. 143(2) needs to be computed with reference to date of filing original return of income. Notice issued u/s. 143(2) beyond the period stated in the proviso to section 143(2)(ii) does not fall within the term `any mistake, defect or omission’ stated in section 292B. The provisions of section 292BB canno<

S/s. 143(2), 292B, 292BB – Where a revised return filed is treated as non-est since the original return was not filed within due date mentioned in section 139(1), the period of issue of notice u/s. 143(2) needs to be computed with reference to date of filing original return of income. Notice issued u/s. 143(2) beyond the period stated in the  proviso  to section 143(2)(ii) does not fall within the term `any mistake, defect or omission’ stated in section 292B.  The provisions of section 292BB cannot extend to a case where the question of limitation is raised on admitted factual position in a given case.

For the assessment year 2008-09, the assessee filed the original return of income 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 computed tax payable under MAT u/s. 115JB. The return of income was processed on 27.8.2009 and it resulted in a demand of Rs. 2,05,710. The return filed was beyond the due date prescribed u/s. 139(1).

The assessee filed a revised return on 30.9.2009 in which business income was stated to be Rs. Nil after claiming exemption of Rs. 1,53,83,511 u/s. 10B. Since the original return was filed beyond the due date, the AO treated the revised return to be non-est. A notice dated 19-08-2010 was issued by the AO and served on the assessee. There was no dispute that this was the only notice issued and served and the assessee did not dispute having received this notice.

Since the original return was filed beyond due date mentioned in section 139(1), the AO in view of the provisions of proviso to section 10A(1A) of the Act, denied the deduction claimed u/s. 10A of the Act. He completed the assessment assessing the total income under the normal provisions of the Act and not u/s. 115JB. Aggrieved, the assessee preferred an appeal to the CIT(A) where it was contended that the assessment be annulled since the notice u/s. 143(2) was issued beyond the time limit mentioned in proviso to 143(2) (ii). The CIT(A) did not agree, since the assessee had attended the hearings and participated in the assessment proceedings. Aggrieved, the revenue preferred an appeal to the Tribunal.

Held:

The admitted factual position is that the notice u/s. 143(2) of the Act dated 09-08-2010 was admittedly beyond the period of six months from the end of the financial year in which the return of income was filed by the assessee, as laid down in proviso to section 143(2)(ii) of the Act. It is also not in dispute that this is the only 143(2) notice issued by the AO. The order of assessment is very clear on this aspect. The law is by now well settled that issuance of a notice u/s. 143(2) of the Act within the statutory time limit is mandatory and it is not a procedural requirement which is inconsequential. Reference may be made to the decision of the Hon’ble Delhi High Court in the case of Alpine Electronics Asia Pvt. Ltd. vs. DGIT, 341 ITR 247 (Del), CIT vs. Vardhana Estates Pvt. Ltd., 287 ITR 368 and ACIT vs. Hotel Blumoon, 321 ITR 362 (SC). The contrary view expressed by the Hon’ble Madras High Court, in our view, cannot be followed as the decisions relied on by the ld. counsel for the assessee of the Hon’ble Punjab & Haryana High Court and Allahabad High Court also took the view that non issuance of notice u/s. 143(2) of the Act renders assessment order invalid. Admittedly, notice u/s. 143(2) of the Act not having been served on the assessee within the period contemplated under law, the order of assessment has to be held to be invalid and annulled.

As far as section 292B is concerned, we do not think that the notice issued by the AO u/s. 143(2) of the Act in the present case will fall within any mistake, defect or omission which is in substance and effect in conformity with or according to the intent and purpose of this Act. The requirement of giving of the notice cannot be dispensed with by taking recourse to the provisions of section 292B of the Act. As far as provisions of section 292BB is concerned, as laid down in the decisions of the Allahabad High Court in the case of Manish Prakash Gupta (supra) & Parikalpana Estate Development (P) Ltd. (supra) and Hon’ble Punjab & Haryana High Court in the case of Cebong India Ltd. (supra), the provisions of section 292BB cannot be applied in a case where admittedly no notice u/s. 143(2) had been issued within the time limit prescribed in law.

We may also clarify that the dispute in the present case is not with regard to issue and service of notice u/s. 143(2) of the Act, as admittedly there was only one notice u/s. 143(2) dated 19-08-2010 issued and served on the assessee before completion of the assessment proceedings.The question is as to, whether the said notice was issued and served within the time contemplated u/s. 143(2) of the Act. The provisions of section 292BB lay down the presumption in a given case. It cannot be equated to a conclusive proof. The presumption is rebuttable. The provisions of section 292BB cannot extend to a case where the question of limitation is raised on admitted factual position in a given case. We therefore hold that the provisions of section 292BB of the Act will not be applicable to the present case.

The appeal filed by the revenue was dismissed.