|QUERY:||Mr. “A’ a practising Advocate received a notice under section 143(2) of the Act, for the assessment year 2007-08 , after the expiry of twelve months from the end of the month in which return was furnished. The Assessing Officer passed the assessment order under section 143(3) of the Act, on the basis of second proviso to section 143(2) r.w.s. 292BB on the ground that these are procedural provisions, hence, they have retrospective effect.|
|ANSWER:||Similar question arose before the Special Bench in Kuber Tobacco Products Pvt. Ltd. vs. DCIT, [28 SOT 292 (Del.) (SB)], wherein the Hon’ble Tribunal held that section 292BB is substantial provision. Initiation of assessment proceeding require issuance of under section 143(2) which is a right vested in the assessee and the said right has been taken away by the provision of section 292BB and, thus, in case where some right has been taken away, the provisions are substantive in nature and cannot be held to be retrospective unless specifically so stated by the legislature.
Further, the Supreme Court in ACIT vs. Hotel Blue Moon [321 ITR 362] has held that the Assessing Officer must necessarily issue notice under section 143(2) of the Act, within the time prescribe in proviso to section 143(2). Omission on the part of the Assessing Authority to issue notice under section 143(2) cannot be a procedural regularity and is not curable. Therefore, the requirement of notice under section 143(2) is mandatory within time provided in the section; otherwise the assessment is bad-in-law; illegal and ab-initio-void.
|EXPERT:||CA. H. N. Motiwalla|
|CATCH WORDS:||Assessment, notice|
Opinion Of Eminent Legal Luminaries On Controversial Issues
Whether Assessment On The Basis Of Notice, Which Was Issued Beyond Prescribed Period Is Valid?
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