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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 ..... under section 143 ( 3 ) or 144 and that too without issue of notice under section 143 ( 2 ) is illegal unjustified and bad in law. (3) On the facts and circumstances of the case the Learned CIT ( A ) erred in confirming addition of Rs. 13,350 as unexplained investment is illegal, unjustified and bad in law. 2. None appeared on behalf of the assessee. Even though request for adjournment was made, for which in my opinion there was no sufficient cause. I accordingly rejected the adjournment. In the absence of ld. A.R. I decided to dispose of the appeal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in clause ( b ) , in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may he prescribed and 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 section 139; ( b ) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made: Provided that the Assessing Officer shall assess or reassess the total income in respect of each 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 presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not under-stated the income or has not computed excessive loss or has not under-paid the tax in any manner, serve on the assessee a notice requiring him. on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return; [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.] 6. Section 153A, as has been pointed out by me earlier, does not prescribe any separate methodology of computation of such income, the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 section 139 . Therefore, in my opinion, these words will have the same interpretation as has been given in respect of return filed in response to a notice issued under section 148. When a question arose whether the proviso to section 143(2) which mandates service of notice within a period of 12 months from the end of the month in which the return is filed, is applicable to the return filed pursuant to a notice under section 148. Special Bench of this Tribunal interpreting the words and 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 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is the material provision which requires our consideration. Section 158BC ( b ) provides for enquiry and assessment. The said provision reads that the Assessing Officer shall proceed to determine the undisclosed income of the block period in the manner laid down in section 158BB and the provisions of section 142, sub-sections ( 2 ) and ( 3 ) of section 143, section 144 and section 145 shall, so far as may be, apply. An analysis of this sub-section indicates that, after the return is filed, this clause enables the Assessing Officer to complete the assessment by following the procedure like issue of notice under section 143 ( 2 ) /142 and complete the assessment under section 143 ( 3 ) . This section does not provide for accepting 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lock period under the provisions of section 158BC, the provisions of Section 142 and sub-sections ( 2 ) and ( 3 ) of section 143 are applicable and no assessment could be made without issuing notice under section 143 ( 2 ) of the Act. However, it is contended by Sri Shekhar, learned counsel for the Department that in view of the expression So far as may be in section 153BC ( b ) , the issue of notice is not mandatory but optional and are to be applied to the extent practicable. In support of that contention, the learned counsel has relied on the observation made by this Court in Dr. Partap Singh s case ( supra ) . In this case, the Court has observed that section 37 ( 2 ) provides that the provisions of the Code relating to searches, shall so far as may be, apply to searches directed under section 37 ( 2 ) . Reading the two sections together it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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