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TMI Blog2010 (11) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... al after hearing the ld. D.R. as the main ground raised relates to the issue of notice under section 143(2). 3. I have carefully considered the submissions made by the ld. D.R. and I have also pointed out the provisions of section 153A(1)(a), section 148 as well as section 143(2) of the Income-tax Act, 1961 ('the Act' hereinafter). This is a fact that in this case the Assessing Officer has not issued any notice under section 143(2). The assessee has taken ground before the CIT(A) that the assessment framed without issuing the notice under section 143(2) is void ab initio. But the CIT(A) did not agree with the assessee in the following manner :- "Appellant's additional ground of appeal has been considered. It is clear that the Income-tax Act itself makes a distinction between a return filed under section 139 and return under section 153A and provides for different schemes of assessments under sections 143(3) and 153A/I53B and 153C. The provisions of section 143 do not apply to a return filed under section 153A although section 153A states that "the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year falling within such six assessment years." 5. From a perusal of the aforesaid section, it is apparent that the Assessing Officer is obliged to issue notice to the person, in whose case action under section 132 or under section 132A has taken place after 31-5-2003, asking the person to furnish the return of income in respect of each of the assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed within such period as he may mention in the notice issued under section 153A(a). This section further provides that all the other provisions of this Act shall apply to the return filed in response to such notice as if such return is a return required to be furnished under section 139 of the Act. Section 153A does not provide the methodology for making the assessment. It only states that the Assessing Officer shall assess or reassess the total income in respect of each Assessment Year falling within such six assessments. This section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure of such computation or the rate at which such income has to be taxed. Therefore, provisions of section 139 and onwards i.e. Section 140 and onwards are applicable. Section 140 prescribes who should sign the return. Section 140A prescribes the payment of taxes on the basis of returned income. An enquiry must then be held as prescribed under section 142 and an assessment may be made as prescribed under section 143. Section 143(1) permits the Assessing Officer to process the return on the basis of the information available in the return. Section 143(2)(i) points out a situation where a return is filed or in response to a notice calling for the return under section 142 in which the Assessing Officer has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be produced, any evidence or particulars as specified therein on which the assessee may rely, in support of such claim. Sub-clause (ii) of section 143(2) points out w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , apply accordingly as if such return were a return required to be furnished under section 139" in the case of Raj Kumar Chawla v. ITO 94 ITD 1 (Del) (SB), has held as under :- "In the light of the analysis of the relevant provisions of law and judicial precedents, it was held that the return filed pursuant to notice under section 148 must be assumed and treated to be a return filed under section 139 and the assessment must thereafter be made under section 143 or 144 after complying with all the mandatory provisions. Accordingly, it is incumbent upon the assessing authority to issue notice under section 143(2) within the period as stipulated in the proviso thereunder. In that view of the matter, it was held that the proviso to section 143(2) which mandates the service of notice within 12 months from the end of the month in which return is filed, also applies to the returns filed pursuant to notice under section 148. As regards the issue regarding effect of non-service of notice under the proviso to section 143(2) to return filed pursuant to section 148, it was to be held that the assessment can be made if the notice under section 143(2) is not served within the time prescribed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the return as provided under section 143(1)(a). The Assessing Officer has to complete the assessment under section 143(3) only. In case of default in not filing the return or not complying with the notice under section 143(2)/142, the Assessing Officer is authorized to complete the assessment ex parte under section 144. Clause (b) of section 158BC by referring to sections 143(2) and 143(3) would appear to imply that the provisions of section 143(1) are excluded. But section 143(2) itself becomes necessary only where it becomes necessary to check the return, so that where block return conforms to the undisclosed income inferred by the authorities, there is no reason, why the authorities should issue notice under section 143(2). However, if an assessment is to be completed under section 143(3) r/w section 158BC, notice under section 143(2) should be issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under section 143(2) cannot be dispensed with. The other important feature that req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely means that the methodology prescribed for carrying out the search provided in section 165 has to be generally followed. The expression "so far as may be" has always been construed to mean that those provisions may be generally followed to the extent possible. The learned counsel for the respondent has brought to our notice the observations made by this Court in the case of Maganlal v. Jaiswal Industries [1989] 4 SCC 344, wherein this Court while dealing with the scope and import of the expression "as far as practicable" has stated "without anything more the expression 'as far as possible' will mean that the manner provided in the code for attachment or sale of property in execution of a decree shall be applicable in its entirety except such provision therein which may not be practicable to be applied." The case of the Revenue is that the expression 'so far as may be apply' indicates that it is not expected to follow the provisions of section 142, sub-sections (2) and (3) of section 143 strictly for the purpose of block assessments. We do not agree with the submissions of the learned counsel for the Revenue, since we do not see any reason to restrict the scope and meaning o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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