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TMI Blog2015 (3) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... of the following substantial questions of law: "A. Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in upholding the assessment, even though the return of income for A.Y. 1997-98 was treated as invalid and no notice was issued u/s.143(2) of the IT Act during the course of assessment proceedings? B. Whether on the facts and in the circumstances of the case, the Income-Tax Appellate Tribunal was right in law in upholding the assessment order passed by the Assessing Officer for A.Y. 1997-98 as in sum and substance u/s.144 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to various pronouncements on the subject. It also had at length discussed the issue of 12 months of issuance of notice from the date of filing of the return. It concluded thereafter that the Revenues contention is not sustainable that when details were called for by virtue of the issuance of notice under section 142(1), in substance the notice under section 143(2) was issued. We notice that this Court in the case of Deputy Commissioner of Income Tax vs. Mahi Valley Hotels and Resorts reported in [2006]287 ITR 360(Guj) considered this question at length and held such requirement absolute in all cases. Holding further that any neglect to attend such requirement would invalidate the whole proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of twelve months from the end of the month in which the return is furnishedýý. On a plain reading of the language in which the proviso is couched it is apparent that the limitation prescribed therein is mandatory, the format of provision being in negative terms. The position in law is well settled that if the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, such requirements are, in all cases absolute and neglect to attend to such requirement will invalidate the whole proceeding. 7. Question in the present form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily to follow the provisions of section 142, sub-sections (2) and (3) of section 143. 9. In the instant case, we notice that both CIT(Appeals) and the Tribunal have held that the procedure prescribed for issuance of notice under section 143(2) has not been followed at all. This realm of fact has not been disputed by the Revenue. In view of this decision of the Apex Court, the assumption of the jurisdiction of issuance of notice of reopening itself would not be sustainable, and therefore, this Court does not require to indulge into the concurrent findings of both the authorities. In absence of fulfillment of mandatory requirement of issuance of notice under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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