Calcutta High Court
Commissioner Of Income Tax Xvi vs Ma Kamakhyaya Enterprises on 23 February, 2011
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
ITAT No. 15 of 2011
G.A.141 of 2011
G.A.142 of 2011
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Income-tax)
Original Side
COMMISSIONER OF INCOME TAX XVI Appellant
Versus
MA KAMAKHYAYA ENTERPRISES Respondent
For Appellant : Md. Nizamuddin with
Mr. Prithu Dudhoria, Advocate
For Respondent :
BEFORE:
The Hon'ble JUSTICE BHATTACHARYA
The Hon'ble JUSTICE DR. SAMBUDDHA CHAKRABARTI Date : 23rd February, 2011.
THE COURT : In view of the fact that neither the acknowledgement card nor the envelope sent to the respondent has come back in spite of the fact that the same was sent by registered post on 19th January, 2011, we presume that the envelope has been received by the respondent.
None appears on behalf of the respondent. After hearing the learned advocate for the appellant and after going through the explanation given in the application we are satisfied that appellant was prevented 2 by sufficient cause from preferring the appeal within the period of limitation. We, thus, condone the delay in filing the appeal.
This appeal is at the instance of the Revenue and is directed against an Order dated 31st March, 2010 passed by the Income-tax Appellate Tribunal, Bench A, Kolkata in ITA No. 1591/KOL/2009 for the assessment year 2006-2007 by allowing the appeal filed by the assessee and setting aside the proceeding for assessment on the sole ground that the notice under section 143(2) of the Income-tax Act was served upon the assessee after the expiry of 12 months from the end of the month in which the return was furnished.
Being dissatisfied, the Revenue has come up with the present appeal.
There is no dispute that the assessee filed return for the assessment year under consideration on 31st October, 2006 and the said return was taken up for scrutiny and notice under section 143(2) of the Act was issued on 25th October, 2007, as it appears from the postal receipt placed on record by the Revenue. However, the said notice was received by the assessee on 3rd November, 2007 i.e. after the expiry of the period of 12 months from the end of the month in which the return was filed by the assessee.
3
Therefore, the question that arises for consideration before us is whether the notice issued under section 143(2) of the Act had been duly served upon the assessee within the prescribed period.
Md. Nizamuddin, learned advocate appearing on behalf of the Revenue strenuously contended before us that all that is required under section 143(2) of the Act is that the notice under the said section must be issued by the Revenue within the expiry of 12 months from the end of the month in which the return was furnished in accordance with the provision contained in section 282 of the Act which provides for mode of service of notice upon the assessee and, thus, in the case before us, the notice having been issued on 25th October 2007, the requirement of the said section has been duly complied with.
In order to appreciate the aforesaid question on interpretation of the relevant provision, the said provision as it existed at the relevant time applicable for the case before us is quoted below :-
"(2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,-
(i) where he has reason to believe that any claim of loss, exemption, deduction, 4 allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim ;
[Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June,2003;]
(ii) notwithstanding anything contained in clause ( i ), if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under- paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return; Provided that no notice under clause (ii) shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished." On a plain reading of the aforesaid provision, it is abundantly clear that 'service' on the assessee within 12 months from the end of the month in which the return was 5 furnished is the essential requirement of law and not mere 'issue' of such notice within the said date.
We, thus, find that in the case before us, the Tribunal was quite justified in holding that by mere issue of notice before the expiry of 12 months from the end of the month in which the return was furnished, if the same was received after the expiry of 12 months by the assessee will not validate the proceeding for assessment. We, therefore, find that no substantial question of law is involved in this appeal and, consequently, we dismiss this appeal summarily.
Photostat certified copy of this order be made available to the parties upon compliance of usual formalities.
( BHATTACHARYA, J.) ( DR. SAMBUDDHA CHAKRABARTI, J.) Rsg.
AR(CR)