2010 (11) TMI 467 - HC - Income Tax

Block Assessement u/s158BC - Notice issued is accepted by the assessee and return is filed in terms of the notice, the assessee cannot contend that there is no service of notice in terms of the section - Annexure D notice is a notice prescribed under Rule 12(1)(a) of the Rules and in the said notice what is called for is return in the prescribed format i.e., in Form 2B, which is for making block assessment under section 158BC - The Assessing Officer has corrected section 158BC to section 158BD , the contents of the notice satisfy the requirement of a notice under section 158BC as well - The notice served on the assessee has to be necessarily taken as a notice issued under section 158BC read with section 158BD, and not an independent notice under section 158BD as held by the Tribunal - Annexure D notice was issued under section 158BC because what is called for is return in Form 2B, which is called for only for the purpose of making block assessment under section 158BC, and section 158BD is also mentioned in the notice - It is nothing but a combined notice issued under section 158BC read with section 158BD and the findings of the Tribunal to the contrary is absolutely untenable - The question referred in favour of the Revenue and against the assessee - These appeals are allowed vacating the orders of the Tribunal and by restoring both the appeals filed by the assessee and the Department to the Tribunal for fresh decision on merits, after hearing the parties.

Summary

Issues:
Validity of assessment notice under section 158BD for block period assessment.

Analysis:
The case involved a dispute regarding the cancellation of an assessment made on the respondent assessee under section 158BC read with section 158BD for the block period. The Tribunal cancelled the assessment due to the alleged defect in the notice issued under section 158BD. The notice was issued to the respondent assessee based on evidence gathered during a search conducted on a partner of the firm, who was a member of the AOP. The Tribunal held that the notice was invalid as it was issued under section 158BD only, not under section 158BC read with section 158BD. The High Court analyzed the contents of the notice and relevant legal provisions to determine the validity of the notice. The notice required the assessee to file a return in Form 2B for block assessment under section 158BC, although the section number was corrected to 158BD. The High Court clarified that under section 158BD, no separate notice is prescribed, and the procedure for assessment is the same as under section 158BC. The notice served on the assessee was found to be in conformity with the intent and purpose of the Act, despite the error in mentioning the section number. The High Court emphasized that the notice was understood correctly by the assessee, who filed the return in the prescribed format. The Tribunal's decision was deemed incorrect and unsustainable as the notice was considered to be issued under section 158BC read with section 158BD. The High Court also highlighted the relevance of section 292B, which prevents minor defects from invalidating the assessment process. The Tribunal's reliance on a previous judgment was found to be misplaced, as the facts of the present case differed significantly from the case cited.

In conclusion, the High Court allowed the appeals, vacated the Tribunal's orders, and restored both appeals to the Tribunal for a fresh decision on merits after hearing the parties.