Itxa/108/2011 Of The Commissioner Of Income Tax ( Central ) Pune v. Shri Omprakash Bajranglal Agarwal

*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.108 OF 2011 The Commissioner of Income Tax..Appellant-Versus-Omprakash Bajranglal Agarwal..Respondent ........... Mr. Vimal Gupta, Senior Advocate, with Mr. Sham Walve i/b. Vipul Arun Bajpayee for the Appellant. ........... CORAM: S.C. DHARMADHIKARI AND A. K. MENON, JJ. DATE :- 18[th] SEPTEMBER, 2014 P.C.: 1]We have heard Mr. Vimal Gupta, learned Senior Counsel, in support of this Appeal. The Revenue is aggrieved by the order dated 30[th] June, 2009 of the Income Tax Appellate Tribunal, Pune Bench. The assessment year in question is 1999-2000. While allowing the Appeal of the Assessee, what the Tribunal has eventually done is to remit the matter to the file of the Commissioner of Income Tax (Appeals) for denovo adjudication. The reasons for the same are assigned by the Tribunal in para 5 of the impugned order. However, Mr. Vimal Gupta would submit that the reasoning in para 5 is erroneous and based on misconception of law. *2* 4.itxa108.11 A Notice was served, according to the Revenue on the Assessee within the statutory time limit. Issuance of notice under Section 143(2) is not a condition precedent for assuming jurisdiction to frame the assessment order. The Commissioner, according to the Tribunal erred in holding that such a notice was not condition precedent for assumption of jurisdiction. Mr. Gupta would submit that in the present case, the Tribunal ought to have realized that the factual position was peculiar. A search and seizure under section 132 of the Income Tax Act, 1961, was conducted on 18[th ]May, 2005 at the residential as well as the business premises in the case of Agarwal Group. The Assessee was also covered. He is an individual and is assessed to tax regularly. The assessment was finalized in this case under section 143(3) read with section 147 of the Income Tax Act, for the subject assessment year on 12[th] December, 2006. A notice under section 148 was issued on 28[th] March, 2006 and which was duly served on the Respondent-Assessee on 31[st] March, 2006. In response to the notice, the Assessee filed a reply which was received by the Assessing Officer on 19[th ]June, 2006 stating that the return filed under section 139 on 14[th] March, 2000 may be taken as a return filed in response to the notice under section 148 of the Act. A notice under section 143(2) was issued on 18[th ]September, 2006 and the same was duly served. It having been served within the statutory period of 12 months from the end of the month in which the return was furnished, the receipt of this notice having not been challenged, the Tribunal erroneously proceeded to hold that notice under section 143(2) within the statutory period is a condition precedent and that was not served. 2]We need not go to the factual controversy as it would be open for the Revenue to point out before the Commissioner as well that there is complete compliance with the statutory requirement or mandate. Since the final direction of the Tribunal is to remand the matter to the file of the Commissioner of Income Tax (Appeals) for a denovo adjudication, then, nothing that is observed and held by the Tribunal in para-5 would bind the Commissioner. With this clarification, we do not find that any substantial question of law has been raised in this Appeal and at this stage. The Appeal is, therefore, dismissed with this clarification. No costs. (A. K. MENON, J.) (S.C. DHARMADHIKARI, J.) wadhwa