9911796707
TMI Blog2011 (2) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... le to quash the assessment proceedings merely on the ground that period mentioned in the notice was lesser than the statutory period specified under Section 158BC(a) - ITA No. 558 of 2006, ITA No. 342 of 2009 - - - Dated:- 1-2-2011 - MR. JUSTICE ADARSH KUMAR GOEL, MR. JUSTICE AJAY KUMAR MITTAL, JJ. Ms. Urvashi Dhugga, Advocate for the revenue. ADARSH KUMAR GOEL, J. 1. Since the Registry has not been able to send the files on account of fire in the Court premises, learned counsel for the revenue has furnished paper books which are taken on record. We proceed to decide the matter after hearing learned counsel for the revenue. 2. Both the above appeals are inter-connected as ITA No. 558 of 2006 is on the issue of quantu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appeal of the assessee holding that the assessment proceedings are vitiated for the assessee having not been given clear period of 15 days for filing the return. 5. We have heard learned counsel for the appellant. 6. Learned counsel for the appellant submits that even if the period specified in the notice was less than 15 days, there was no prejudice as the assessee never filed the return even beyond the specified in the notice and in the period legally allowed to him. In any case, the Tribunal could, at best give further opportunity to the assessee to file return instead of holding the assessment proceedings to be vitiated and thereafter closing the matter. The defect in the notice pointed out by the Tribunal is curable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the intent and purpose of this Act. 8. The above provisions are statutory recognition of principles of natural justice which are applicable to assessment proceedings under the Act. The effective party is entitled to the fair opportunity and the assessment being made by a fair procedure, minimum period of 15 days has been specified statutorily. At the same time, the effect of violation of principles of natural justice is not to always nullify the exercise of jurisdiction but to ensure that the compliance of such principles is made unless prejudice is caused. Where period specified in the notice is less than the statutory period, no prejudice is caused unless the assessee takes steps within the statutory time. The notice specifying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of more days is to be given, is possible. 10.3. The contention of learned DR that if a notice does not provide a period clear 15 days, that is merely an irregularity, which is curable is not acceptable in view of specific provision of law referred to above which casts a specific obligation upon Assessing Officer. When the law requires a particular act to be done in a particular manner and within a particular time, then on addition, subtraction or modification of such requirement is permissible. If the requirement of law is clear, the authorities cannot be allowed to subvert the provision by curing such an irregularity. The requirement of giving notice under section 158BC is a precondition for making assessment. No assessment under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364, at page 390 : (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under no notice , no opportunity and no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
