Ajay Kumar Mittal, J. - (1.) THIS appeal has been preferred by the revenue under Section 260A of the Income Tax Act, 1961 (in short, "the Act") against the order dated 26.7.2006, Annexure A.III, passed by the Income Tax Appellate Tribunal, Chandigarh Bench 'B', Chandigarh (in short, "the Tribunal") in ITA No. 504/CHANDI/2004 for the assessment year 1995 -96, claiming following substantial question of law: - "Whether on the facts and law, the Hon'ble Income Tax Appellate Tribunal was justified in setting aside the reassessment order under Section 147 on the ground that notice under Section 148 was not served on the assessee, disregarding the fact that notice under Section 148 was issued within the limitation period under Section 149 of the I.T. Act and that the ground regarding service of notice was not decided by CIT(A)?
(2.) A few facts relevant for the decision of the controversy involved, as narrated in the appeal, may be noticed. The respondent is an individual. He filed his income tax return for the assessment year 1995 -96 on 28.5.1999 declaring income of Rs. 63,162/ - besides agricultural income of Rs. 10,000/ -. As the return was filed beyond the period stipulated under section 139(1)/139(4) of the Act and was invalid, proceedings under section 147 of the Act were initiated by issuing notice under Section 148 of the Act on 15.3.2002 after obtaining prior approval of the Joint Commissioner of Income Tax, Range I, Ludhiana. During the course of assessment proceedings, the assessee contested the legality of notice under section 148 of the Act without complying with the provisions of the said section i.e. filing of return within the prescribed period. He did not file any information during the course of assessment proceedings and the assessment was completed under section 144 vide order dated 31.3.2003 at an income of Rs. 21,31,522/ - apart from agricultural income of Rs. 10,000/ - after taking into account the material available on record. Aggrieved by the order, the respondent preferred appeal before the Commissioner of Income Tax (Appeals) -1 Ludhiana. Vide order dated 21.1.2004, Annexure A.II, the appeal was allowed and the additions made by the Assessing Officer were deleted on the basis of material furnished before him. Not satisfied with the order, the revenue filed appeal before the Tribunal. Vide order dated 26.7.2006, Annexure A.III, the appeal was dismissed. The Tribunal also admitted the ground of the assessee about validity of proceedings under section 147 under rule 27 of ITAT Rules 1963 and held that notice under section 148 of the Act had not been served on the assessee which was the precondition for reopening the assessment under section 147 and hence subsequent proceedings under section 147 of the Act and the reassessment were null and void. Hence the present appeal by the revenue. Learned counsel for the revenue submitted that the Tribunal had erred in recording a finding that no notice was ever issued to the assessee respondent. It was submitted by the counsel that notice under Section 148 of the Act was issued to the assessee vide dispatch No. 1812 and the Tribunal had erred in recording a finding that the dispatch register entry at Serial No. 1812 is in the name of Magh Singh. He referred to entry in the said register at 1820 to canvass that notice to Magh Singh was entered at this serial number and not at Serial No. 1812. The original dispatch register was produced. Further relying upon judgments of this Court in V.R.A. Cotton Mills (P) Limited v. Union of India and others, CWP No. 18193 of 2011, decided on 27.9.2011 CIT v. Panchvati Motors (P) Limited, : (2011) 243 CTR (P&H) 189 and Om Sons International v. Commissioner of Income tax, : (2011) 244 CTR (P&H) 110 and provisions of section 292BB introduced by Finance Act 2008 w.e.f 1.4.2008, learned counsel argued that the provisions of section 292BB were applicable in pending cases as on 1.4.2008 as held therein. The said provision is applicable in the present case as well and therefore, the matter requires to be remanded to the Tribunal to adjudicate afresh on merits.
(3.) WE have heard learned counsel for the appellant and perused the record. The legal representatives of the respondent assessee as per office record have been served. No one has chosen to oppose the appeal. After hearing learned counsel for the appellant, we find merit in his contentions.;