JUDGMENT :

M.R. Shah, J.

By way of this petition under Article 226 of the Constitution of India, petitioner - assessee has prayed for an appropriate order to hold that the notice under section 143(2) of the Income Tax Act (hereinafter referred to as “the Act” for short) dated 26/9/2012 is illegal and void as beyond the period mentioned in the first proviso to section 143(2) of the Act. It is also further prayed to quash and set aside the consequent assessment order passed for the Assessment Year 2010-11 dated 26/3/2013 computing total income of Rs. 3,47,63,560/- and raising demand of Rs. 1,48,72,320/- and that the penalty proceedings under notice dated 28/3/2013 under section 274 read with section 271(1)(c) of the Act.

2. At the outset, it is required to be noted that the impugned notice issued under section 143(2) of the Act and the consequent assessment order for the Assessment Year 2010-11 dated 26/3/2013 are mainly challenged on the ground that notice issued under section 143(2) of the Act dated 26/9/2012 has been issued beyond the period mentioned in the first proviso to section 143(2) of the Act. No other submissions have been made.

3. It is the case on behalf of the petitioner that return of income for A.Y. 2010-11 claiming exemption of Rs. 5,09,70,716/- was filed on 29/4/2011. That the said return was processed under section 143(1) of the Act on 30/8/2011. That notice under section 143(2) of the Act came to be issued by the respondent on 26/9/2012 which actually came to be served upon the petitioner - assessee on 1/10/2012. It is the case on behalf of the petitioner that considering the first proviso to section 143(2) of the Act, notice under section 143(2) of the Act was required to be served within a period of six months from the end of accounting year only in which returns were filed and therefore, notice was required to be served by the petitioner - assessee on or before 30/9/2012. However, the said notice was served on the petitioner on 1/10/2012 i.e. beyond the period prescribed in the proviso to section 143(2) of the Act, and therefore, the said notice under section 143(2) of the Act is invalid and consequent assessment order dated 26/3/2013 passed on the basis of the aforesaid in valid notice deserves to be quashed and set aside.

4. Mr. Manish Kaji, learned counsel appearing on behalf of the petitioner has heavily relied upon the decision of the Division Bench of this Court in the case of Deputy Commissioner of Income-Tax v. Maxima Systems Ltd., reported in (2012) 344 ITR Gujarat and in the case of Deputy Commissioner of Income-Tax v. Mahi Valley Hotels and Resorts, reported in (2006) 287 ITR 360 (Gujarat). He has also relied upon the decision of the Hon'ble Supreme Court in the case of Asst. CIT v. Hotel Blue Moon, reported in (2010) 321 ITR 362 (SC).

4.1. Mr. Kaji, learned counsel appearing on behalf of the petitioner has submitted that in the case of Maxima Systems Ltd. (supra), relying upon the decision of the Hon'ble Supreme Court in the case of Hotel Blue Moon (supra) and decision of the Division Bench of this Court in the Mahi Valley Hotels and Resorts (supra), the Division Bench has held that according to the proviso to section 143(2) of the Act, no notice under section 143(2) can be served on the assessee after the expiry of 12 months from the end of the month in which the return is furnished. It is submitted that it is further observed and held in the said decision that the jurisdiction to frame the assessment under section 143(3) pursuant to the notice under section 143(2) can be assumed only if the notice is served on the assessee within a period of 12 months in which the return was filed. It is submitted that by holding so and as it was found that notice issued under section 143(2) of the Act was served upon the assessee, after the expiry of the prescribed period mentioned section 143(2) of the Act, the Division Bench confirmed the order passed by the ITAT quashing and setting aside the order of CIT(A) c