Ita/139/2010 Of Commissioner Of Income Tax, Kolkata-Iii v. M/S. Fairluck Commercial Co. Ltd

OD-24 ITA/139/2010 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (Income Tax)ORIGINAL SIDE COMMISSIONER OF INCOME TAX,KOLKATA-III -Versus- M/S. FAIRLUCK COMMERCIAL CO.LTD. BEFORE :THE HON’BLE JUSTICE SURYA PRAKASH KESARWANIAndTHE HON’BLE JUSTICE RAI CHATTOPADHYAYDate : 22[nd] January, 2024 Appearance:Mr. Smarajit Roychowdhury, Adv....for the appellant. Mr. J. P.Khaita, Sr. Adv.Mr. Pranit Bag, Adv.Mr. A. K. De, Adv....for the respondent. The Court : Heard the learned standing counsel for theappellant/revenue and the learned counsel for therespondent/assessee. By an order dated 30.06.2010, this appeal was admittedon the following substantial question of law: “Whether on the facts and circumstances of thecase, the Section 292BB inserted by Finance Act, 2008has any application purporting to cure the procedurallapse in issuing notice ?” Learned counsel for the appellant submits that in viewof the provisions of Section 292BB of the Income Tax Act, 1961(hereinafter referred to as the ‘Act, 1961’) defect, if any, innot issuing notice under Section 143(2)(ii) of the Income TaxAct, 1961 stands cured and, therefore, the impugned order ofthe Income Tax Appellate Tribunal in ITA No.1532/Kol/2008 (A.Y.2002-03) in appeal filed by the Deputy Commissioner of IncomeTax and the cross-objection No.111/Kol/2009 filed by therespondent/assessee, deserves to be set aside and the presentappeal deserves to be allowed.Learned counsel for the respondent/assessee submitsthat Section 292BB is of no help to the appellant inasmuch asthis provision came into effect from 01.04.2008 and the entireproceedings have been completed much prior to that. Thatapart, he further submits that even on merits the appellantshave no case.We have carefully considered the submission of learnedcounsel for the parties and perused the paper book.Section 292BB was inserted by Finance Act, 2008 (18 of2008) with retrospective effect from 01.04.2008. The re-assessment order under Section 147/143(3) of the Act, 1961 waspassed by the assessing officer on 29.12.2006. The aforesaidre-assessment order was set aside by the CIT(A) on 08.05.2008on the ground that no mandatory notice under Section 143(2)(ii) was issued by the assessing officer and despite objectionraised by the assessee, no notice in relation to the returnfiled under Section 147 was issued by the assessing officer.The entire proceedings concluded by the assessing officer underSection 147/143(3) of the Act, 1961 in the year 2006 itself.Section 292BB came into force with effect from 01.04.2008.Therefore, the question raised in the present appeal by theappellant/revenue has no merit. No other point has been argued before us by learnedcounsel for the parties. For all the reasons afore-stated, on facts of thepresent case, the substantial question of law as framed in thepresent appeal and the re-produced above, is answered in thenegative i.e, in favour of the assessee and against therevenue.The appeal (ITA/139/2010), accordingly, standsdismissed. (SURYA PRAKASH KESARWANI, J.) (RAI CHATTOPADHYAY, J.) As.