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2.Notice Issued U/s 143(2) of the act is barred by limitation and thus Illegal :-
That the notice issued U/s 143(2) is illegal and barred by limitation. The proviso to sec 143(2) states that "no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished. "
2.1Revised return is within due date as per the act The assesse filed the revised return on 09/04/2001 vide receipt no.0027 enclosing the TDS form no. 16A and claiming the TDS at Rs.1,75,815/- which could be filed till 31-03-2002 and hence revised return filed is valid since the original return was filed before the due date. Revised return was filed only for claiming TDS of Rs.1,75,815/- which was not claimed in the original return by mistake.
The revised return has been filed after processing of return but since the assessment has not been completed till 09/04/2001 i.e. date of filing of revised return and therefore revised return filed is valid. Hon'ble Commissioner of Income Tax (Appeals), Ujjain has mentioned in its own order in Para no. 4.1 that "the revised return filed by the appellant was not regular return. " The assesse had filed the revised return on 09/04/2001 which is a regular return. Since the revised return can be filed upto 31/03/2002 therefore it was not a non-est. In the case of S.R. Koshti v. Commissioner of Income-tax [2005] 276 ITR 165 Gujarat High court held that "the assessee can file revised return even after intimation is served. "
The Commissioner of Income Tax (Appeals), Ujjain has mentioned in its order in Para no. 4.6 that "the A 0 is directed to grant the interest on refund as per law. "
In the case of Tarsem Kumar v/s The Income Tax Officer and others CWP No. 19906 of 2011, The High Court Of Punjab and Haryana at Chandigarh (2012) also held that "the assessee for assessment year 2005-06 could file the revised return after complying with the provisions of Section 139(5) of the Act up to 31.3.2007. The revised return filed on 26.9.2006 was thus validly filed within limitation. Consequently, the claim of the petitioner-assessee for the refund of the additional tax deposited amounting to Rs. 3,61,188/- is valid and justified. Also held that we allow the writ petition and direct that the refund be released to the petitioner within three months from the date of receipt of certified copy of order along with interest at the rate of 12 per annum till the date of making the payment to him. "
The proviso to sec 143(2) states that "no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished. " The Ld. Counsel for the assessee further contended that the revised return was filed within due date as per the Act. The Ld. Counsel for the assessee further contended that the assesse filed the revised return on 9th April, 2001, vide receipt no.0027 enclosing the TDS form no. 16A and claimed the TDS at Rs.1,75,815/- which could be filed up to 31-03-2002 and hence revised return filed was valid since the original return was filed before the due date. Revised return was filed only to claim TDS of Rs.1,75,815/- which was not claimed in the original return. The revised return was filed after processing of return but since the assessment was not completed till 9th April, 2001, i.e. date of filing of revised return and therefore revised return filed was valid. The Ld. Counsel for the assessee further contended that Ld. CIT(A) , Ujjain, has also mentioned in para 4.1 of his order that "the revised return filed by the appellant was not regular return. " The assesse had filed the revised return on 9th April, 2001, which was a regular return. Since the revised return could be filed upto 31st March, 2002, therefore it was not a non-est. The Ld. Counsel for the assessee placed reliance on the decision in the case of S.R. Koshti v. Commissioner of Income-tax [2005] 276 ITR 165 Gujarat High Court, in which the Hon'ble Court held that "the assessee can file revised return even after intimation is served. " The Ld. Counsel for the assessee further relied on the decision of Hon'ble Supreme Court in the case of ACIT vs. Rajesh Jhaveri Stock Brokers (P) Ltd., 291 ITR 500 (2007) in which it was held that "intimation although deem to the notice of demand u/s 156 can not be taken as assessment order. " The Ld. Counsel for the assessee further contended that the assessee filed application for rectification u/s 154, which was not processed by the AO. Then the assessee filed an application u/s 119(1)(b)(c) on 21st December, 2004. The Ld. Counsel for the assessee further contended that the application u/s 119(1)(b)(c) was filed on 21st December, 2004, before the ld. CIT, which was decided on 17-01- 2008. The application filed ought to have been decided within the reasonable time i.e. order passed after 3 years, hence, delay caused is unreasonable. The Ld. Counsel for the assessee contended that the proviso to sec 143(2) states that "no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished". Since the notice issued u/s 143(2) on 16th May, 2008, i.e. after 30th April, 2002, the notice is invalid and barred by limitation. The directions of the ld. CIT to issue notice u/s 143(2) beyond the time prescribed under the law is illegal. The Ld. Counsel for the assessee contended that the assessee should not be penalized because of delay caused in deciding the application by the Income tax authorities and thus notice issued u/s 143(2) beyond the time limit is illegal, bad in law and needs to be annulled.