Received notice under 143(2) and (1)

The Proviso to Section 143(2) (ii) of  the Income Tax Act 1961 provides:

Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.

Therefore, the notice under S 143(2) for the A.Y 2010-11served on you after 30-09-2011, is belated and hence invalid.Therefore you may file a protest letter before the Assessing Officer, with a  request to withdraw the Notice; if he does not withdraw the notice,but proceeds with the assessment, you may approach his higher authorities for the relief; you can also file a Writ Petition before the High Court with a prayer to quash the Notice. In the absence of any High Court order quashing the notice, you may co-operate with the Assessing Officer, under protest. Even if he completes the assessment, you can challenge it in appeal on the very same ground.  

Thanks a lot your guidance

Hello R Rajgopalan,

One of my friend told me that since I met Ao officer on 3rd sep 2012 and accepted 143(1) and 2(2) in writing and given acknowledgement. Time barring would not be applicable in my case?.

I was not knowing anything about 143 (2) I asked AO office and he told me to bring document.

Please help me

Your Query: One of my friend told me that since I met Ao officer on 3rd sep 2012 and accepted 143(1) and 2(2) in writing and given acknowledgement. Time barring would not be applicable in my case?.

I was not knowing anything about 143 (2) I asked AO office and he told me to bring document

Reply: If you have acknowledged it as received on 3-9-2012 only (whereas the due date had been 30-09-2011), that you personally received the notice does not weaken your case.  In CIT vs. AVI-OIL India 323 ITR 242 (P&H)  it was held that a notice u/s 143(2) had not only to be issued, but had to be served before the expiry of 12 months (now 6Months from the end of the F.Year)) from the end of the month in which the return was furnished.

However there is an adverse decision also: 2011 -TMI - 210840 - PUNJAB AND HARYANA HIGH COURT in V.R.A. Cotton Mills (P) Ltd. Versus Union of India and others

 Meaning of expression ‘Served’ / 'issued' - Notice u/s 143(2) - Whether such expression is to be used literally, so as to mean that actual physical receipt of notice by the addressee or the expression ‘served’ is inter changeable with the word issue - service by affixation at 11.20 pm on 30.09.2010 is not in terms of the Code of Civil Procedure - Held That:- In view of Commissioner of Sales Tax and others Vs. Subhash & C o - the date of receipt of notice by the addressee is not relevant to determine, as to whether the notice has been issued within the prescribed period of limitation. The expression 'serve' means the date of issue of notice. The date of receipt of notice cannot be left to be undetermined dependent upon the will of the addressee. Therefore, to bring certainly and to avoid attempts of the addressee to evade the process of receipt of notice, the purpose of the statute will be better served, if the date of issue of notice is considered as compliance of the requirement of proviso to Section 143(2) of the Act.

  No. - CWP No.18193 of 2011 Dated - September 27, 2011   

You may also guard yourself against the provisions of S 292BB which is as under:

Notice deemed to be valid in certain circumstances.

292BB. Where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was—

(a)  not served upon him; or

(b)  not served upon him in time; or

(c)  served upon him in an improper manner:

Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment

One client has got Income tax notice under sec 143 (2). In particulr FY, she (client) found cash deposit of more han 10 lac in her saving account. One employee of the bank asked the client for the help and used her saving account for depositing cash of Rs. 5-10 lac every month (only on last of day of the month) to increase the month end balance in saving account in order to contribute and support in incremental CASA size of the Bank branch to meet its target. The same cash deposit belongs to some other customer and got withdrawn by self cheque very next day (1st date of next month). She and bank officer (new officer in the branch) was not aware about the fact that client might get Income tax notice for depositing more than 10 lac in a FY. While bank employee came to know about the fact, he felt regret and stopped depoiing cash into her saving account. Pls guide how to respond the AO..

Technically the Assessing Officer is correct. However you may represent the true facts supported by a letter from the Bank confirming the facts, and insist that the deposit does not represent your income.

Dear Mr. Manish Bhardwaj, 

I had same type of case, with slight difference as the statuatory notice was not received at all, returned back. The A.O .had completed assessment with huge demand, even though objected the validitty before completion of assessemnt. We went on appeal with CIT - Thane and won the case.

If you have the evidance of receipt of the notice, you can have a chance for the same. If you require, we can help for  the submission.