Cit v. Kiji]L-Ilt'i-Oiiacco Products P. Ltd. Ltd

c) h * IN TIIE HIGH COURT OF DELI{I AT NEW DELHI -r. ITA No.1l59/2010 CIT ..... APPellant'I'hrough: Mr.Sanjeev Sabharu'al, Sr. StanclingCounscl. versus KIJI]l-ilt'I-OIIACCO PRODUCTS P. LTD. LTD. PRODUCTS P. LTD. LTD. ..... Itcspondent'fhrough: Mr. Ajay Vohra. and Ms. Kavita Jha,Advocates. l)atc oI l)ecision : October 06. [2010] % CORAM: tr.ION'I}I,E MR. JUSTICE A.K. SIKRIIIC)N'BLE MS. J{JS'tr'ICtr] REyA KIIETRAPAL 1. Whethcr reporters ot local [papers ][ma1'be ][allowcd] to sce the [judgment?] 2.'['<t bc rcfcrred to the ltcporter or not? 3. Whcthcr.jurdgment shoulcl be [reported in ][Digcsti'] JUpGMENT(ORAL) : REVA KHE'IRAPAL, J. A search operation under Scction [I321r ][of ][the ][Incomc'.fax Act,]1961 n'as conducted on [25th ][Januarl'- 1999 ][by the ][Invcstigation ][Wing]ol' the l'ncome Jlax Dcpartment in [pursuance ][to ][the ][excise ][raid]conductod by thc Anti l:vasion Wing of [the ][Central ][Excisc, ][Delhi-I, ][in] l'ase I of 17 lrA [Na,!b22U!-] ") the course of which { 1,80,000/- r,vas seized in [some ][of ][the ][business]premiscs of the asscssee-company. A notice [datcd ][12tl' September,]2000 undcr Section 1588C(a) of [the Income ][Tax ][Act'uvas ][issued ][by]the Assessing Officer and was Seryed [on ][the ][aSSeSSee. ][In ][response ][to]the said notice the authorized representatives [of ][the ][assessee ][furnished]thc details asked for and filed its [return ]of [income ][on 29tl' ][September,]2000 declaring 'NIL' undisclosed [income. ]['fhereafter, ][assessment]rvas framed by the Assessing Officer [under ][Section 1588C ][of ][the ][Act]on 29tr'January, 2007 at undisclosed [income ][of ][< ][2,07,87,I7I1-. ][The]assessee being dissatisfied with the order of [the ][Assessing ][Officer]filed an appeal before the CIT(A). ['Ihe CIT(A) ][partly ][allowed ][the]appcal of the assessee and deleted [the ][addition ][of ][7 ][37,26,867/-.]Aggrieved by the aforesaid order of CIT(A), [the ][assessee ][as ][well ][as]the Revcnue filed cross-appeals beforc [the ][Income ][tax ][Appcllate]'fribunal. 2. 'I'hc assessee before"the Income'fax Appellatc Tribunal raisedan additional grouqd: - "That under the facts and [circumstances, ][the]block assessment proceedings [and ][consequential]block assessment proceedings [and ][consequential] ITA No. Il59/2010 block assessment order is without [jurisdiction ]inthe absence of issuance of rnandatory legal noticeunder Section 143(2) of the I.T. Act." 3. The stand of the Department was that in vier,v of the insertionof Section 292-BB, which was inserted by the Finance Act, 2008 witheffect from l [tt ]April, 2008, the assessee could not take the plea thatthe assessment should be held invalid merely on account of the factthat no notice under Section 143(2) was issued and that, in fact, theassesscc was barred from taking such a plea. 4. In the aforesaid circumstances, the following question wasreferred by the Income Tax Appellate Tribunal to a Special Bench:referred by the Income Tax Appellate Tribunal to a Special Bench: "Whether thc Assessee who has participated inthe block assessment proccedings is precltrdedfrom taking any objection that notice underSection 143(2) was not served upon him or wasnot seryed upon hirn in time in view of theprovisions of Section 292-BB inserted by theFinance Act, 2008 with effect from 01.04.2008and if so, since when he can be said to be soprecluded?"the block assessment proccedings is precltrdedfrom taking any objection that notice underSection 143(2) was not served upon him or wasnot seryed upon hirn in time in view of theprovisions of Section 292-BB inserted by theFinance Act, 2008 with effect from 01.04.2008and if so, since when he can be said to be soprecluded?" 5. ISefore the Tribunal it was contended on behalf of the assessee that Section292-BB had no application to the facts of the present case ITA No. 1159/2010 5. ISefore the Tribunal it was contended on behalf of the assessee that Section292-BB had no application to the facts of the present case ITA No. 1159/2010 as the language thereof pre-supposes the issuance of notice [under]Section 143(2). According to the facts of [the present ][case, ][there is ][no]dispute that notice under Section 143(2) was never issued [and ]if [this]bc so, the question frarned did not covcr the [controversy ][existing ][in]the case of the assessec. Iteliance was placed on [the ][decision ][of ][the]Gauhati High Court in the case of Bortdorto [Gogoi ][vs. ][CIf ][2007J289 ITR 28 wherein it was held that the [defect ][of ][non-issuance ][of]notice under Section 143(2) in thc [casc ]of block [asscssmcnt ][cannot ][be]cured and such assessmcnt suffers from both [procedural ][as r,r'ell ][as]jurisdictional error. It was also contended that in any cvent Section2g2-IlB of the Act which was introduced [r,vith ][effcct ][from ][l't ][April,]2008 cannot bc relicd upon to uphold [the ][validity ][of ][the ][block]assessment for the reason that the said [provisi.rn is not ][applicable ][to]thc assesstnent year in question. By [the ][introduction ][of ][Section 292-]BI], the assessce is precluded from taking [a ][plea ][which ][is the ][right ][of]the asscssee and, therefore, in lalv, [this ][provision ][cannot ][be ][held ][to ][be]retrospective, more so aS in the [present case ][the ][assessment]proccedings were completed prior to l't [April, ][2008. ][Refercnce ][was]ITANo. tl59n0l0Puse 4 of 17 made to a large number of [judicial ][pronouncements ][to ][support this]contention. 6. 'I'he contention of the Revenue, on the other hand, r,vas that thelraming of assessment under the [provisions ][of ][Chapter ] [on]cornpletion of the scarch operation [partakes ][the ][charactcr ][of]procedural or machinery provisions and default in [complying ][with]any proccdural provisions or irregularity in [respect ][thereof rvould not]be fatat to the assessmcnt [per ][se so ][as ][to ][render ][the charging ][Section]otiosc. In this context and [with ][a ][view ][to ][illustratc ][the ][distinction]bctr,vccn the interpretation of [the ][charging ][provision ][of ][a ][statute ][and]thc interpretation of a machinery [provision, ][a ][large ][number ][of]judgmcnts \,verc cited, including the following: - D [CIf ][vs. Shruwon ][l(umtr, ][210 ] [886 ][(SC);] Associatecl Cement Co.. Ltd. vs. [CTO, ][48 STC ][466]2) (SC);(SC); 3) Vishwansth Prsssd Bltugwati [Prostd, ][202 ] [469](AII);(AII); Sant Bobo Mohon Singh vs. CIT, 90ITR [197 ][(All);] 4) s)Kopwrchond Shrimal vs. CIT' [131 ] [451 ][(SC);] ITA No. lI59/2010 6) Rasikkomani vs. CIT, 203 ITR [848 ][(Bom);] 7) Jai Prakash Singh vs. CIT' 219 IfR !37 (SC); and S) CWT vs. Mtur Bahsdur Singh, [208 ]ITR [658 ][(Roi.).] 7. The Tribunal after considering the rival [submissions ][of ][the]parties by its order dated 14.01 .2009 rendered [the ]following [findings,]rclying upon the dicta laid down by [the ][Supreme ][Court in ][the ][case ][of]I{srimthar:wi Tes Estute Ltd. [vs. ]Stute [of Keralu ]U966J [60 ] 262 (which is a decision rendered by five [Judges ][of ][the ][Hon'ble]Supreme Court), that the Income [Tax ][Act, ][as ][it,,tands ][amended on the]First day of April of any financial [year, ][must apply ][to ][the ][assessment]of that year: "44. If the present issue is considered in thelight of the ubove decision of flon'ble [Suprente]Court then it has to be held that Section [292 BB]is applicable to assessnrcnt [year ][2008-09 ][and]subsequent years. Therefore, [answer ][to ][the]second aspect of the question [is ][that ][assessee is]precluded from taking such obiection for [and]fi'om [assessment ][years ][2008-09.] 45. Sumnmrising our, findings [Y'e ][hold ][as]follows:-Section 292 BB even if it [[,s]], [[,s]]procedr'tral it is creating a [new]procedr'tral it is creating a [new] ITA No. 1159/2010 Puee 6 of 17 "44. If the present issue is considered in thelight of the ubove decision of flon'ble [Suprente]Court then it has to be held that Section [292 BB]is applicable to assessnrcnt [year ][2008-09 ][and]subsequent years. Therefore, [answer ][to ][the]second aspect of the question [is ][that ][assessee is]precluded from taking such obiection for [and]fi'om [assessment ][years ][2008-09.] 45. Sumnmrising our, findings [Y'e ][hold ][as]follows:-Section 292 BB even if it [[,s]], [[,s]]procedr'tral it is creating a [new]procedr'tral it is creating a [new] ITA No. 1159/2010 Puee 6 of 17 the assesstnent, suclt an orrrrrrrr,rt ordertvouldnot be a n?ere irregular (sic. irregularity) butwould be invalid. It was further held in the saidcase that requirentent of ntaking an assessmentorder pwsuant to the grant of hearing and [an]opportunity to tlte assessee to [produce ][material ][in]support of his return is not an empty formality,and if such right is denied to the assessee, itwould arnount to a travesty of [justice. ]apart frontbeing violative of the statutory prescription ofSection 143(2) and 143(3) read with [Section]ISSBC(b). It was, thus, held that vthere [that A.O.]is not inclined to aciept the return of undisclosedincome filed fut the assessee, issuance of a noticeunder Section 143(2) is pre-requisite for framingthe bloclc assessmettt under Chapter XIVB of [the]AcL The I'Ion'ble Delhi High Cot'trt was inagreenxent with the clecision of the Hon'bleGutvahati High Court in the case of BandanaGogoi vs. CIT, [(2007) ]289 ITR 28 [(Gmvahati) ][on]this aspect of the nmtter. In the light of [the]aforesaid decision of Special Bench in the presentcase, and in the light of the decision of [the]I{on'ble Jurisdictional l-Iigh Court of Delhi in [the]case of CIT vs. Pawan Gupta and Ors. [(ntpra),]we hold that since no notice uhder Section [143(2)]tvas serned upon the assessee before nruking [the]block assessnrcnt ancl before tinlcering with [the]block return filed by the assessee showing ['Nil']undisclosed inconte, the assessment so [nwde ][by]the A.O. under Section I58BC is invalid [and]illegal and not nzerely irregular. We, therefore,quash the assessment ntade under Section l|BBCby tlrc A.O. ITA No. 1159/2010 disability as it preclt'tded theassessee from tqking a plea whichcould be taken as a right, cannot beconstrued retrospectively as thesame tr made applicable bY [the]statr,fte w. e.f. 0 1. 04. 08.Section 29288 is applicable to [the]assessment year 2008-09 [and]sub s eqt ten t as s [e ]s s ntent Ye ars. iil 46. Now the ntatter will be placed [before ][the]regular Bench to decide the appeals in [regular]nlanner. ["] 8. 'l'hcreafter, the matter was once again taken up by the learnedI1AT on 24't' July, 2009 (in regular hearing), [rvhich ][quashed ][the]asscssment made under Section 158BC by [following ][the ][decision ][of]Jurisdictional IJigh Court of Dclhi in the [casc ]of [vs. Pnwsn]Gupta (2009) 223 CTR [(De\ ]487 [and ][held that:] "9. The question whether the service of noticeu/s 143(2) is nmndatory both in [the ][case ][of ][a]regular assessment and a block [assessnlent"made]under Chapter XIV B of the Act has [been]considered by the iurisdictional High [Cou't ][of]Delhi in the case of CIT [vs. ][Pswan ][Gupta and]Ors., reported in (2009) 223 CTP [487, vthere ][it]has been held that where the A.O. is not [inclined]to accept the return of undisclosed [inconte ]filedby the assessee, the [procedure ][prescribed ][in]Section 143(2) has to [be ]followed, [and ][if ][he ][does]not issue a notice under Section 143(2) [and] ITA No. 11592010 10. The additional ground raised by theassessee is thus, decided infavour of the assesseeand against the department." 9. The assessee having emerged successful it was now the tum of "9. The question whether the service of noticeu/s 143(2) is nmndatory both in [the ][case ][of ][a]regular assessment and a block [assessnlent"made]under Chapter XIV B of the Act has [been]considered by the iurisdictional High [Cou't ][of]Delhi in the case of CIT [vs. ][Pswan ][Gupta and]Ors., reported in (2009) 223 CTP [487, vthere ][it]has been held that where the A.O. is not [inclined]to accept the return of undisclosed [inconte ]filedby the assessee, the [procedure ][prescribed ][in]Section 143(2) has to [be ]followed, [and ][if ][he ][does]not issue a notice under Section 143(2) [and] ITA No. 11592010 10. The additional ground raised by theassessee is thus, decided infavour of the assesseeand against the department." 9. The assessee having emerged successful it was now the tum of the Department to feel aggrieved. Consequently, [the present ][appeal]under Scction 260A of the Act is filed against the [aforesaid order ][of]the ITAT dated 24n July,20Og, whereby the appeal of [the ][Assessee]was allowed and the cross appeal filed by the Revenue [was ][dismissed.]The findings of the Tribunal, that in the [absence ]of [notice ][under]Section 143(2), the assessment framed by [the Assessing ][Officer ][under]Section 1588C was rendered invalid, have been sought to [be]challenged as contrary to lar,v. 10. The question of law rvhich thus [arises ]for [our ][consideration ][is]as follows: "Whether the I1AT erred in cancelling [the ][block]assessment made by the Assessing Officer [under]Section 1588C by holding that the provisions ofSection 2928H* inserted by [the Finance ][Act, ][2008]with effect from 01.04.2008 were [not]retrospective in nature and did not [preclude ][the]assessee from taking an objection that noticeunder Section 143(2) not having been servedupon him, the block assessment made by [the] ITA No. 11592010 \7 Assessing Officer under Section 1588C \ [Ias]illegal and invalid?" 11.Wehave heard the leamed counsel for the [parties ][and ][drvelt] upon theprccedents cited at the bar. At the outset, wc [deern ][it]expedientto refer to the provisions of Section [2928r= ]of [the ][Act,]wl-rich read as under: "NOTICE DEEMED TO BE VALID INCERTAIN CIRCUMSTANCES &g!tU--Zm- [nn ]Where an assessee hasappeared in any proceeding or [co-operated ][in]ary) inquiry' relating to an [assessnrcnt ][or ][re-]assessnrcnt, it shall be deented that any [notice]uncler any provision of this Act, vhich [is ]requiredto be sented upon him, has [been ][duly ][served upon]hint in time in accordance with [the ][provisions ][of]this Act and such assessee shall be [precluded]fronz [taking ][any ][objection. ][in ][any proceedings ][or]inquiry under this Act that the notice [v'QS'-] (") not served upon him; or (b) not served upot't hint in tinte; [or] @ [sented ][upon ][him ][in ][an ][hnProPer]nlanner: Provided that nothing contained in [this ][sectiort]shall apply where [qssessee ][has ][raised ][st'rch]objection before the [contpletion ][of ][such]assess ntenl or reassessn'tenL ["] 12.'fhe Notes on Clauscs explaining the afr'"resaid Section, which arc apposite, are as follows: ITANo. lI59/2010 $ (") not served upon him; or (b) not served upot't hint in tinte; [or] @ [sented ][upon ][him ][in ][an ][hnProPer]nlanner: Provided that nothing contained in [this ][sectiort]shall apply where [qssessee ][has ][raised ][st'rch]objection before the [contpletion ][of ][such]assess ntenl or reassessn'tenL ["] 12.'fhe Notes on Clauscs explaining the afr'"resaid Section, which arc apposite, are as follows: ITANo. lI59/2010 $ "Clause 52 seeks to insert a new sec.292 BB inthe Incorne Tax Act, laying down [certain]circumstances in which notice shall [be deemed to]be valid. It is proposed to provide [that where ][an]assessee has appeared in any prdceeding or [co-]operated in any inquiry relating [to an ][assessnrent]or reassessnrcnt, ii shall be [deented ][that ][any]notice under any provision of this Act, [which ][is]required to be served upon hint, has been [duly]served upon him in tinte in [accordance ][with ][the]provisions of the Act and such assessee shall [be]precluded front taking any obiection [in ][any]proceeding or inqttiry under this Act [that ][the]notice was, (a) not served upon him; or [(b) ][not]served Ltpon hint in tinte; or [(c) ][served ][upon ][hint]in an intproper nwnnenI'his amendntent will take [effect ]from [l'']April, 2008."the Incorne Tax Act, laying down [certain]circumstances in which notice shall [be deemed to]be valid. It is proposed to provide [that where ][an]assessee has appeared in any prdceeding or [co-]operated in any inquiry relating [to an ][assessnrent]or reassessnrcnt, ii shall be [deented ][that ][any]notice under any provision of this Act, [which ][is]required to be served upon hint, has been [duly]served upon him in tinte in [accordance ][with ][the]provisions of the Act and such assessee shall [be]precluded front taking any obiection [in ][any]proceeding or inqttiry under this Act [that ][the]notice was, (a) not served upon him; or [(b) ][not]served Ltpon hint in tinte; or [(c) ][served ][upon ][hint]in an intproper nwnnenI'his amendntent will take [effect ]from [l'']April, 2008." It rvould also be relevant if [the Memorandum explaining ][the] 13. provisions warranting the insertion of the above Section [is]reproduced, which reads [as ][under:-] "Serryice of notice and the tinrc-lintit for issuanceof notice u/s 143(2) of the IT [Act.] Sub-section (2) of sec.143 of [the ][Inconte]Tax Act provides that the notice [under this ][sub-]section shall be served [on ][the ][assessee ][vithin ][a]period of 12 months fi'om the end of [the ][ntonth in]v,hich the return is furnished. I\'rther, [the]service of such notice must be [effected ][in ][a]nxqnner laid down in Sections [282, ][283 ][and ][284]of the Income Tax Act, readwith [General ][Clauses]Act. Instances have come to [the notice ][of ][the] ITA No. 1159/2010 Departnrcnt, where notice under st'tb section [(2)]of sec.I43, though issued by registered [post]within 12 months front the end of [the month in]which the return was ftrnished, [have ][been ][held]"invalid" on the ground that the notice vtasactually received by the assessee after [the]limitation date and there was no ['setnice' ][as]postulated under the section. This [,s]nohvithstanding the fact that the [assessee ][has]attended the assessntent proceedings in responseto the notice set'ved on him. Instances [have also]conte to notice where the orders of [the ] [are]being quoshed on the consideration [that ][there ][is]no evidence of issue or service of notice, [even]though the assessee and his AR have attended [the]hearing before the AO during [the ][assessment]proceedings. Further, the design of [the ][limitation]period 'with reference to the end of the ntonthleads to adndnistrative inconvenience in [as ntuch]as the last day of every nrcnth becontes [a ][tinte-]barring date. In order to address these [issues ][and ][to]reduce litigation, it is proposed [to ][insert ][a ][nelu]sec.292 BB in the Inconte Tax Act [to ][provide ][that]where an assessee has appeared in [arty]proceeding or co-operated in [any ][inquity ][related]to an assessnxent or reassessntent, [it ][shall ][be]deented that any notice under any [provision ]ofthis Act has been duly served upon him [in ][time in]accordance with the relevant [provision ][of ][the ][Act.] Further, such assessee [shall ][be ][precluded]from [taking any objection ][in ][any ][proceeding ][or]inquiry under this Act that the [notice ]was:- (") not served ttPon him; ornot served u7on hint in time; [or](b) @ [serued ][upon ][him ][in ][an ][intproper]manner.Similar antendntent is also [proposed ][in ][the]Wealth Tax Act. Furtlter, it rs also proposed to antendclause (ii) of sub-section (2) of sec.I4j to providethat the notice under sttb-section [(2) ]of [section]143 shall be served on the [assessee ][within ][a]period of 6 ntonths from the end of the financialyear in v,hich the return is furnished. Thisamendrnent v,ill take effect front [1." ]April, [2008. ]["] 14. Significantly, in the instant case, [as ][noted ][by ][the ] [in ][the] impugned order, the block assessment is for the [period ][from]01.04.1988 to 25.01.1999 and the said block [assessment under]Section 1588C was made by the Assessing Officer [on ][29.01 ][.200I,]i.e., prior to the insertion of Section [2928F., ][inrerted ][with ][effect ][from]01.04.2008. Thus, it is submitted by the [assessee ][that the provisions]of Section 2928P are not applicable [to ][the present ][assessment made]under Section 1588C by the Assessing [Officer ][on 29.01.2001. ][The]plea of the Department, on the other hand, is [that ][in ][the ][light of ][the]fact that the assessee had [participated ][in ][the ][assessment ][proceedings,]thc assessment order made under Section 1588C [cannot be ][rendered] ITA No. 1159/2010 invalid and illegal merely for r.vant of specific notice [issued ][under]Section 143(2) of the Act. 15. Dealing first with the [question ]as to whether [non-issuance ][of]noticc under Section 143(2) or non-service of notice under SectionI43(2)on the assessee in terms of the [provisions ]of [Sub-section ][(2) ][of]Section 143 could render the block assessment rnade under Sectionl58BC invalid, it is not in dispute that in [the ][present ][case ][the]Departmcnt has not produced any evidence to show [that notice ][under]Section 143(2) was served upon the [assessee. ]In [the ][case ][of ][Pswun]Gupto (s.upra), the question whether selice of notice [under ][Section]143(2) is mandatory in the case of a block assessment made [under]Chapter XIV B of the Act was considered by [a ]Division [Bench ][of ][this]Court, wherein it was laid down: "Where the assessing fficer is not inclined toaccept the rehu'n oJ'undisclosed inconte filed bythe assessee then the procedure prescribed inSection 143(2) would have to [be ]follotued. If [he]does not issue a notice under Section 143(2) [and]completes the assessment all the sanre, such. [an]assessment order would not be a nxere irregularitybut would be invalid. The requirentent of [making]an assessntent order pursuant to the [grant ]of [a]hearing and an opportunity to the [assessee ][to] ITA No. 1159/2010 \,I produce material in support of his return [is not ][an]It is a substantive [right ][of ][the]empty formaltty. assessee to be presented with [the ]fullestopportunity to support the [return ]filed [by him. ][If]such right is denied to the [assessee, ][it ][tuould]amount to a travesty of [justice ][apart ]frorn [being ][in]violation of the statttory prescription [of ][Section]143(2) and 143(3) readwith [Section ] [(b) ][of]the said Act." ITA No. 1159/2010 \,I produce material in support of his return [is not ][an]It is a substantive [right ][of ][the]empty formaltty. assessee to be presented with [the ]fullestopportunity to support the [return ]filed [by him. ][If]such right is denied to the [assessee, ][it ][tuould]amount to a travesty of [justice ][apart ]frorn [being ][in]violation of the statttory prescription [of ][Section]143(2) and 143(3) readwith [Section ] [(b) ][of]the said Act." 16. In the instant case, [as ][noted ][hereinabove, ][it ][is ][not ][in ][dispute ][that]the assessee filed block return for [the ][block ][period ][01.04.1988 to]25.0I.1999 on 29.09.2000 declaring [undisclosed ][income ][at ]['Nil']pursuant to the notice issued under Section [1588C ][dated ][12.09.2000]by the Assessing Officer. It is [also ][not ][in ][dispute ][that the ][assessee]had participated in the block [assessment ][proceedings ][and ][even]subnritted his rcply dated 29.12.2000 to [the ][detailed ][questiomaire]issucd by the A.O. to the [assessee ]on [05.12.2000. The ][Special Bench,]however, held that Section [2928p ][cannot ][be ][construed ][to ][have]retrospective operation and it is to [be ][construed ][prospectively,]meaning thereby that [prior ][to ][01.04.2008, ][i.e., ][upto ][31.03.2008, ][the]assessee is not ['precluded ]from [taking ][any ][objection ][regarding]invalidity of assessment/re-assessment [on the ][ground ][of] Page l5 of17 ITA No. 1159/2010 a o improper/invalid issuance/service of notice [and, ][therefore, ][the]assessee cannot be [precluded ][from ][raising the plea ][that ][notice ][under]Section 143 was not served upon [the ][assessee.] 17. . The appellant [has ][not ][been able ][to cite ][any ][cogent ][justification]to enablb us to differ r,vith the [aforesaid ][view ][except ][to ][state ][that]Section 292F8 is [procedural ][in ][nature and hence applicable ][to ][the]present case and that in view of [the ][participation of ][the ][assessee ][in ][the]assessment procecdings, recourse by [the ][assessee ][in ] proceedings to the provisions of Section [143(2) ][is ][not ][permissible.]Wc are wholly unable to [agree ][with ][the ][appellant. ][In ][our opinion, ][the]spccial Bench rightly [held ][that ][section ][292F.F: ][does ][not ][have]retrospective effect and [is ][to ][be construed ][prospectively, ][inasmuch ][as]the said Section creates a [disability ][by ][precluding the ][assessee ][from]taking a plea which otherwise [could be taken ][by ][the ][assessee ][as ][a]matter of right. 18. In our view [the ][Tribunal ][has ][rightly ][relied ][upon the ][five- ][Judge]llench decision of the Hon'ble [Supreme ][Courl ][in ][the ][case ][of]Ksrimtharuvi Teo [Estcrte ][Ltd. ][ys. ][Stote ][of Kerala ]F9661 [60 ] ITI No. 1159/2010 Paee 16 of 17 \l \>r .:,a 262 has clearly held [that the Income ][Tax ][Act, ][as ][it ][stands ][amended]on the First day of April of any financial [year, must ][apply ][to ][the]assessment of that [year, the relevant ][portion ][of ][which ][is ][reproduced]hereunder: . " 10, Now, it is well-settled that the Income-taxAct, as it stands amended [on ][the ]first [day of ][April]of anyfinancialyear [must ][apply to ][the ][assessntents]of that year. Any antendments in [the ][Act ][which]conte into force after the first day of April [of ][a]Act, as it stands amended [on ][the ]first [day of ][April]of anyfinancialyear [must ][apply to ][the ][assessntents]of that year. Any antendments in [the ][Act ][which]conte into force after the first day of April [of ][a]financial [year, ][v,ould ][not apply ][to ][the ][assessttrcnt]for [that ][year, ][even ][if ][the ][assessment ][is ][actttally]nwde after the antendments [come ][into ]force' ["]for [that ][year, ][even ][if ][the ][assessment ][is ][actttally]nwde after the antendments [come ][into ]force' ["] We accordingly hold that Section 29288 is [applicable ][to ][the] 19. assessment year 2008-09 [and ][Subsequent assessment ][years.] We accordingly hold that Section 29288 is [applicable ][to ][the] 19. assessment year 2008-09 [and ][Subsequent assessment ][years.] 20. The question of law which [arises ][in this ][appeal stands answered]accordingly.accordingly. 21. The appeal stands [disposed ][of.] lL [Llt-TJ]REVA KHETRAPAL October 06, 2010 sk/km Puee 17 of 17 ITA No. 11592010