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TMI Blog2015 (12) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the word “shall” used in the provision also highlights the expression to be of mandatory character. A co-ordinate bench of the tribunal in the case of ITO Vs. Shri Dinesh B. Gandhi [2015 (12) TMI 756 - ITAT AHMEDABAD] has rejected a similar argument of the Revenue wherein the very dates of return followed by issuance and service of section 143(2) notices were involved. The Revenue’s fails to point out any distinction on facts or law. We accordingly reject its first contention.- Decided in favour of assessee. Whether Section 158BC in chapter XIV-B is a complete code in itself wherein section 143(2) does not apply in toto? - Held that:- Section 158BC(b) clearly stipulates the procedure to be followed by an Assessing Officer in deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g undisclosed income of ₹ 30 lacs. The Assessing Officer thereafter completed assessment on 31.7.2001 making various additions aggregating to ₹ 40,50,950/- pertaining to the impugned block period from assessment year 1990-91 to 29.7.1999. 4. The assessee preferred appeal. He challenged validity of the section 142(3) notice on the ground that the same was not served within a period of twelve months from the end of the month of furnishing the return in question. The CIT(A) has accepted this legal plea for invalidating the assessment framed in question as under: 6. I have carefully considered the matter. I have discussed the issue with the AO and have examined the assessment records in his presence. I find the AR's cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have indicated that also. A reading of the provision would clearly indicate, in our opinion, if the AO, if for any reason, repudiates the return filed by the assesses in response to notice under Section 158 BC(a), the AO must necessarily issue notice under Section 143(2) of the Act within the time prescribed in the proviso to Section 143(2) of the Act. Where the legislature intended to exclude certain provisions from the ambit of Section 158 BC(b) it has done so specifically. Thus, when Section 158 BC(b) specifically refers to section 143(2), applicability of the proviso thereto cannot be excluded. The clarification given by CBDT in its Circular No. 717 dated 14th August, 1995, has a binding effect on the Department, but not on the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT (SS) A NO. 41 85/Ahd/2003, and Arvindbhai C Jhaveri V/s ACIT Central Circle-4, Surat in IT(SS)A 39 and 94/AHD/2003, the Hon'ble ITAT Ahmedabad bench has annulled block assessment orders (in these cases) on the ground that the notice u/s 143(2) was not issued within the prescribed time limit i.e. within one year from the date of filing of the block-return. While doing so, the ITAT has placed reliance on the decision of the Guwahati High Court in the case of Bandana Gogol V/s CIT (2007) 209 CTR 21 and 289 ITR 28, apart from the following other cases: ; (i) ACIT V/s R.P.Singh (2007) 111 TTJ (DEL) 880 (ii) CPR Capital Services Ltd. V/s DCIT (2008) 115 TTJ (DEL) 528 (iii) Rakesh S Mardia V/s DCIT (2002) 74 TTJ (Ahd) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000. The same was served on 26.7.2001. The Revenue accordingly argues that this issuance of notice happens to be within the abovestated statutory limitation of one year. It further contends that the decision of hon ble apex court hereinabove has not been appreciated in its true spirit. A perusal of section 143(2) proviso as it existed being substituted w.e.f. 1.4.2008 makes it clear that no notice under clause (ii) of Section 143(2) shall be served after the expiry of twelve month from the end of the month in which the return is furnished. The expression served in our view happens to be much distinct than the expression issued . We make it clear that the present is a tax statute wherein such expressions used have to be literally interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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