ITO Vs. AMBALAL JAIN

JUDGEMENT

(1.) This appeal by the revenue for the assessment year 1993-94 is directed against the. Order of Commissioner (Appeals), Udaipur, dated 3-10-1996.

(2.) I have heard the arguments of both the sides and have also perused the record.

(3.) The learned Departmental Representative has relied on the order of the assessing officer. The learned authorised representative of the assessee has contended that the assessee having furnished the return of income in August, 1993, so the notice under section 142 should have been issued within 12 months from the end of the month in which the return was furnished, i.e., upto 31-8-1994. He has contended that in this case the first notice under section 143(2) was issued on 30-8-1994, and was served on the assessee on 2-9-1994, i.e., beyond the prescribed period of 12 months. He has contended that the assessee had objected to the notice before the assessing officer as well as vide assessee's letter dated 16-9-1994. He has, however, also submitted that the assessee had filed writ petition before the Hon'ble High Court but the same stands dismissed for the reason that the alternative remedy was available to the assessee. He has contended that ex parte assessment was made during the pendency of the writ petition. He has contended that the notice having been served on the assessee after the expiry of the prescribed period of 12 months, the assessment framed as a result of the said notice is not valid and without jurisdiction, and so the learned Commissioner (Appeals) had rightly annulled the same. He has relied on Kurban Hussain Ibrahimji Mithiborwala v. CIT , CIT v. Kurhan Hussain Ibrahimji Mithiborwala , Arasina Hotels Ltd. v.. Dy. CIT (1997) 57 TTJ (Ban) 701 and Mrs. C. Malathy v. Income Tax Officer (2004) 89 TTJ (Che) 938.(2004) 88 ITD 37 (Che).