O/TAXAP/138/2006 JUDGMENT IN HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 138 of 2006 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER 1 Whether Reporters of Local Papers may be allowed to see judgment ? 2 To be referred to Reporter or not ? 3 Whether their Lordships wish to see fair copy of judgment ? 4 Whether this case involves substantial question of law as to interpretation of Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? COMMISSIONER OF INCOME TAX....Appellant(s) Versus DHIRUBHAI R. DESAI....Opponent(s) Appearance: MR MANISH BHATT, SENIOR ADVOCATE WITH MRS MAUNA M BHATT, ADVOCATE for Appellant(s) No. 1 MR MANISH J SHAH, ADVOCATE for Opponent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and Page 1 of 4 Downloaded on : Thu Jul 30 08:06:23 IST 2020 O/TAXAP/138/2006 JUDGMENT HONOURABLE MR.JUSTICE K.J.THAKER Date : 11/12/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. Revenue has filed this appeal u/s.260A of Income Tax Act, 1961 (for short, Act) being aggrieved by and dissatisfied with order passed by Income Tax Appellate Tribunal (for short, ITAT) in I.T.A. No. 102/Ahd/2004 dated 22.03.2005. 2. While admitting appeal on 29.08.2006, following substantial question of law came to be formulated; Whether, Appellate Tribunal is right in law and on facts in holding that no assessment u/s 147 read with Section 143(3) can be made if notice u/s. 143(2) of Act is not served within time prescribed by proviso u/s. 143(2) of Act? 3. Mr. Manish Bhatt, learned Senior Standing Counsel appearing with Ms. Mauna Bhatt, learned Standing Counsel for Revenue submitted that this Court in case of Commissioner of Income-tax III vs. Panorama Builders (P.) Ltd reported in [2014] 224 Taxman 203 (Gujarat) wherein identical issue was raised held that section 292BB of Act is only confined to service of notice and does not apply to issuance of notice, neither it cures defect or enlarges statutory period where mandatory notice under section 143(2) is required to be issued within limitation fixed under Act. Page 2 of 4 Downloaded on : Thu Jul 30 08:06:23 IST 2020 O/TAXAP/138/2006 JUDGMENT 4. Mr. Manish Shah, learned advocate appearing for assessee on other hand submitted that issue is squarely governed by decision of this Court dated 25.11.2014 rendered in Tax Appeal No. 1020 of 2006 in case of ITO vs. Baroda Cricket Association wherein this Court has held as under: 4. Learned advocate appearing for appellant in all these appeals has pointed out that proviso to section 148(1) inserted by Parliament on 28.2.2006 in IT Act, provides that notice issued after 12 months but before completion of assessment/reassessment in respect of return u/s. 148 furnished during period from 1.10.1991 to 30.9.2005 shall be deemed to be valid notice. In that view of matter, matter is required to be considered in light of amended provisions. Ld. Advocate for respondent has submitted that in view of amendment, matter is required to be remitted back to CIT(A) for reconsideration. Hence, in view of amended provisions, we are of opinion that matter is required to be re- considered by both authorities after considering factual matrix of matter and amended provisions. 5. Learned counsel for both sides submitted that considering law laid down by this Court, matter may be remanded to Tribunal for reconsideration in light of aforesaid decisions and as CIT(A) has allowed appeal on this ground alone. Para 4.3 & 4.4 of CIT(A) s order reads as under: 4.3 From above, it is clear that notice u/s. 143(2) which was required to be sent by 31.1.2002 was not sent within that time. Instead it was served only on 26.3.2002. Therefore, Page 3 of 4 Downloaded on : Thu Jul 30 08:06:23 IST 2020 O/TAXAP/138/2006 JUDGMENT requirements of proviso to section 143(2) have not been met. A.O. could not have framed assessment u/s 143(3) in such circumstances. 4.4 Hence assessment framed is bad in law and therefore void and accepting appellant s ground of appeal, same is hereby annulled. 6. We have heard learned counsel for parties and have perused record of case. Considering issue involved in present appeal and decisions cited hereinabove, we think it fit to remand matter to Tribunal, who shall consider issue afresh in light of said decisions and provisions of law and shall render decision, after considering contentions raised by both sides on all grounds raised before CIT(A) also. Tribunal shall decide issue afresh without being influenced in any way by observations made by earlier Bench of Tribunal as also by this Court. We have not entered into merits of matter. As matter is being remanded we do not answer question raised in present appeal. With above observations, appeal stands disposed off. (K.S.JHAVERI, J.) (K.J.THAKER, J) divya Page 4 of 4 Downloaded on : Thu Jul 30 08:06:23 IST 2020 Commissioner of Income-tax v. Dhirubhai R. Desai