S. 148 : When time limit for issuance of notice u/s.143(2) not expired, notice u/s.148 invalid.

15 B. R. Industries v. ITO

ITAT ‘A’ Bench, Jaipur

Before I. C. Sudhir (JM) and B. P. Jain (AM)

ITA No. 988/J.P./2006

A.Y. : 2003-04. Decided on : 31-12-2007

Counsels for assessee/revenue : Mahendra Gargieya/L. R. Meena

Per B. P. Jain :

Facts :

The assessee had filed return of income on 2-12-2003, which was processed u/s.143(1)(a) on 10-3-2004. Thereafter a notice u/s.148 was issued on 8-4-2004 and served on 9-4-2004. The assessee was also served a notice u/s.143(2) on 29-7-2005. The assessee challenged the validity of the notice u/s.148 of the Act which was rejected by the AO and the CIT(A) as well.

The assessee contended that once the AO was having the statutory time available with it for the issuance and service of a notice u/s.143(2), during the pendency and availability of such time, he could not have issued the notice u/s.148. The original return of income was filed on 2-12-2003 and as per the proviso below S. 143(2) of the Act, such a notice could have been issued validly on or before 31-12-2004. The AO however, without waiting until the expiry of the said period i.e., up to 31-12-2004, issued a notice u/s.148 on 8-4-2004.

Held :

The Tribunal agreed with the assessee that when the statutory time limit was a available with the AO for issuance of notice u/s.143(2) of the Act, then the notice u/s.148 cannot be issued during the pendency of the proceedings. Further, it observed that the notice u/s.143(2) could be served within 12 months from the end of the month in which the return was furnished as per proviso to S. 143(2) of the Act and since in the present case, the notice u/s.143(2) was served on 29-7-2005 i.e., after the expiry of 12 months from the end of the month in which the return was furnished, the same was also not valid. Further, relying on the decisions listed below, the Tribunal allowed the appeal of the assessee.

Cases referred to :