D.N.PATEL,J. - (1.) The Chairman of Central Board of Direct Taxes (CBDT), New Delhi is directed to file an affidavit that in last five years, how many cases the notice under section 143(2) of the Income-tax Act has not been served upon the assessee within a period of 12 months from the end of the month, in which the return is filed under section 139 of the Income-tax Act or return is filed in pursuance to the notice under section 148 of the Income-tax Act or in pursuance to the notice issued under section 142(1) of the Income-tax Act, 1961.
(2.) In this case, the return was filed by the assessee M/s. Adityapur Industrial Area Development Authority, on 11th October, 2006, notice issued under section 143(2) dated 05.10.2007, was served upon the assessee on 8th November, 2007 which is beyond the period of 12 months from the end of the month in which the return was filed by the assessee under section 139 of the Income-tax Act. Thereafter notice under section 148 was issued and was served upon the assessee on 06.12.2007. The assessee has stated that they are not filing a fresh return but earlier return which was already filed under section 139 should be treated as a return filed by the assessee. After the notice under section 148 is served upon the assessee, these facts were stated by the assessee on 11.12.2007 and thereafter without issuing notice under section 143(2), re-assessment has been completed by the A. O. which was challenged by the assessee before the CIT(Appeal). The appeal was dismissed against which an appeal was preferred by the assessee before the Income Tax Appellate Tribunal ( ITAT), mainly on the ground that notice under section 143(2) was not issued, after the notice under section 148 was issued and served upon the assessee.
(3.) The counsel appearing for the appellant as well as respondent has cited not less than two dozens decisions. Department also relied upon the newly inserted provision 292(BB), which is inserted and made effective from 1st April, 2008. Still the arguments are going on. Nonetheless, time and again in whole of the country, several decisions are being given by the Courts in every year that if the notice under section 143(2) has not been issued within a period of 12 months from the end of the month in which the return is filed then the whole re-assessment proceeding is bad in law. It appears that A. O. and whole hierarchy of the officers are just looking at (and not discussing and understanding) these decisions and are committing same errors again and again. Every year such type of cases are coming to the Court especially when much higher amount income tax is escaped from assessment, which runs into crores rupees. In every such type of matter, crores of rupees of income-tax could not have been levied by the department only because notice was not served within a period 12 months. The assessing officers of the Central Government are maintaining stoic silence. This court wants to know whether any A.O. has been dismissed in whole of the country, who has not issued notice under Section 143(2) within a period of 12 months from the end of the month in which the return is filed.;