Income Tax Appellate Tribunal - Ahmedabad
Unique Enterprise,, Surat vs Department Of Income Tax
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD BENCH "A" AHMEDABAD
Before Shri Mahavir Singh, Judicial Member, and
Shri D. C. Agrawal, Accountant Member
ITA No.3242/ Ahd/2008
Assessment Year :2005-06
Date of hearing:22.9.10 Drafted:22.9.10
Asstt. Commissioner of V/s. M/s. Unique Enterprise,
Income-tax, Circle-9, 62, Kalidas Nagar, L.H.
Room No.423, 4 t h Floor, Road, Surat
Aayakar Bhavan, Majura PAN No. AABFU4948A
Gate, Surat
(Appellant) .. (Respondent)
Appellant b y :- Shri Anil Kumar, CIT-DR
Respondent by:- Shri M.J. Shah, AR
ORDER
PER Mahavir Singh, Judicial Member:-
This appeal by the Revenue is arising out of the order of Commissioner of Income-tax (Appeals)-V, Surat in appeal No.CAS-V/238/2007-08 dated 23- 06-2008. The assessment was framed by ACIT, Circle-9, Surat u/s.144 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act') vide his order dated 26-12-2007 for assessment year 2005-06.
2. The only issue in this appeal of Revenue is against the order of CIT(A) in holding the assessment as null and void. For this, Revenue has raised the effective ground No.1 and 2:-
ITA No.3242/Ahd/2008 A.Y. 2005-06ACIT Cir-9, SRT v. M/s. Unique Enterprise Page 2 "1. On the facts and in the circumstances of the case and in law, the ld.
CIT(A) has erred in holding that the assessment is null and void as the notice u/s.143(2) of the I.T. Act was served beyond the statutory time limit.
2. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in not appreciating the facts that service of the notice u/s.143(2) is procedural matter as clarified by introduction of section 292 BB by Finance Act 2008 w.e.f. 01.04.2008 that proceedings u/s.143(2) are deemed to be valid if the assessee has not raised any objection regarding non-serving of the notice upon him before completion of the such assessment proceedings."
3. At the outset, it is noticed that the return of income was filed by the assessee on 28-06-2005 for assessment year 2005-06. The notice u/s.143(2) of the Act dated 29-06-2006, was served on 06-07-2007, which is beyond the time limit as provided in provisions of Section143(2), as this notice has to be served within the period of 12 months. After perusal of assessment records, the CIT(A) clearly noted that the service of notice was on 06-07-2006, which is beyond the statutory time-limit provided u/s Section 143(2) of the Act. As the issue of 292BB as introduced by the Finance Act with effect from 1-4-2008, the proceedings Section 143(2) which deemed to be valid if the assessee had not raised any objection regarding non-service of the notice before completion of such assessment proceedings and he has participated in the completion of assessment proceedings. The Ld. CIT-DR, Shri Anil Kumar stated that this issue is covered by the decision of this Tribunal "C" Bench in the case of ITO v. Varia Partik Engineering in ITA No.1226/Ahd/2007 & 104/Ahd/2008 (2009) 120 TTJ 1 (Ahd). On the other hand, Ld. Counsel for the assessee, Shri M.J. Shah stated that this issue is squarely covered in favour of assessee and against the Revenue by the decision of Delhi Special Bench in the case of Kuber Tobacco Products (P) Ltd. v. DCIT (2009) 117 ITD 273 (Del) [SB], ITA No.3242/Ahd/2008 A.Y. 2005-06 ACIT Cir-9, SRT v. M/s. Unique Enterprise Page 3 wherein it is clear held that this provision of Section 292BB is introduced prospectively and not retrospective and that also w.e.f 1-4-2008.
4. We find that this issue is cover in favour of assessee and against the Revenue by the decision of ITAT Delhi Special Bench in the case of Kuber Tobacco Products (P) Ltd. (supra). Respectfully following the same, we confirm the order of CIT(A) and this issue of Revenue's appeal is dismissed.
5. In the result, Revenue's appeal is dismissed.
Order pronounced in Open Court on 22/09 /2010 Sd/- Sd/-
(D.C.Agrawal) (Mahavir Singh)
(Accountant Member) (Judicial Member)
Ahmedabad,
Dated : 22/09/2010
*Dkp
Copy of the Order forwarded to:-
1. The Assessee.
2. The Revenue.
3. The CIT(Appeals)-V, Surat
4. The CIT concerns.
5. The DR, ITAT, Ahmedabad
6. Guard File.
BY ORDER,
/True copy/
Deputy/Asstt.Registrar
ITAT, Ahmedabad