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TMI Blog2017 (3) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and therefore it is invalid. In our view, the authority who is issuing the notice must be aware of the Act and must construe the provision strictly. The words `not less than fifteen days’ have to be interpreted correctly. In that view of the matter, since the Assessing Officer asked the assessee to file the return within fifteen days of the service of the notice, the notice issued by the Assessing Officer is invalid. We are, therefore, of the opinion that the Tribunal has rightly cancelled the order of the Assessing Officer. The questions referred to us are, therefore, answered in favour of the assessee and against the revenue. - D. B. Income Tax Appeal No. 49 / 2009 - - - Dated:- 1-3-2017 - ACJ K. S. Jhaveri And Vinit Kumar Mathur, JJ. For the Appellant : Mr. P.K. Kasliwal For the Respondent : Ms. Parinitoo Jain JUDGMENT 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has partly allowed the appeal of the assessee and remanded the matter back to the Assessing Officer. 2. This Court while admitting the appeal on 04.12.2009 had framed the following substantial questions of law: (i) Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee to file the return of income and therefore, the notice issued by the Assessing Officer is invalid. He has further contended that in view of section 292B read with section 158BC of the Act, the Tribunal has committed serious error in reversing the decision of the Commissioner of Income-tax (Appeals) and the Assessing Officer. He has relied on the following decisions: (1) Shirish Madhukar Dalvi v. Assistant Commissionerof Income-tax and others [2006) 287 ITR 242 (Bom) where the Bombay High Court has observed as follows: Before we deal with the aforesaid contentions raised on behalf of the rival parties in the light of the above extracted statutory provisions, it is appropriate to first consider the law laid down by the apex court with various other High Courts relevant to the facts of the case at hand. In the case of State of Karnataka v. Muniyalla, AIR 1985 SC 470, it is held that merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other provision of law. In the case of Hukumchand Mills Ltd. v. State of Madhya Pradesh (1964) 52 ITR 583 (SC); AIR 1964 SC 1329, the apex court has ruled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y provision having regard to the text and context of the statute may not call for strict construction. 75. In U.P. State Electricity Board v. Shiv Mohan Singh (2004) 8 SCC 402, this court stated the law in the following terms: ( SCC p. 440, paras 96-97)`96. Ordinarily, although word `shall is considered to be imperative in nature it has to be interpreted as directory if the context or the intention otherwise demands. (see: Sainik Motors v. State of Rajasthan, AIR 1961 SC 1480,para 12). 97. It is important to that in Crawford on Statutory Construction at page 539, it is stated: `271. Miscellaneous implied exceptions from the requirements of mandatory rules, in general Even where statute is clearly mandatory or prohibitory, yet, in many instances, the courts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their jurisdiction in considerations of justice. It is a well-known fact that often to enforce the law to its letter produces manifest injustice, for frequently equitable and humane considerations, and other considerations of a closely related nature, would se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Bombay High Court in Shirish Madhukar Dalvi (2006) 287 ITR 242 (Bom.), wherein a distinction has been made between service of notice under sections 147 and 158BC of the Act. It has been held that section 158 BC is a procedural section and not a substantive section and, therefore, the ratio and the decision in State Bank of Patiala v. S.K. Sharma (1996) 3 SCC 364 applies. In the said case, the Supreme Court held that in the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. An order passed in violation of such provision can be set aside only when such violation has occasioned prejudice to the subject. Even mandatory requirement can be waived by the person concerned, if the mandatory provision is conceived in his interest and not in the public interest. The conduct of the subject is required to be examined and kept in mind. Procedural rules are assigned to afford a full and proper opportunity to the person concerned to defend himself. 3. Commissioner of Income-tax v. Jagat Novel Exhibitors P. Ltd. (2013) 356 ITR 559 where at paragraph Nos. 41 and 45, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice issued under section 158BD is only procedural and not related to assumption of jurisdiction, it is not open to the assessee to contend that the assessment was not valid. 16. As far as the non mentioning of the block period in the notice issued under section 158BD is concerned, in the decision relied on by learned Standing Counsel for the revenue in Shirish Madhukar Dalvi s (supra) the Bombay High Court considered the nature of the proceedings contained in section 158BD. On going through the provisions contained under sections 147, 148 and 158BC, the Bombay High Court held that section 158BA refers to jurisdiction of the Assessing Officer to assess undisclosed income in accordance with Chapter XIV-B, whereas Section 158BA(2) is the charging section, section 158BB provides for computation of undisclosed income for the block period, whereas section 158BC provides the procedure for block assessment. In the decision in Sakthivel Bankers (supra) this court held that failure to mention the provision in the notice was not a circumstance which could be said to vitiate the ultimate order. The said decision relates to the assessment made consequent on the search conducted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vital and held that notice under section 158BC is mandatory. In paragraph No. 26 of the said judgement, the Karnataka High Court has observed as under: The contention is unacceptable. The time to be granted in terms of section 158BC is mandatory. Having failed to comply with the same, granting another opportunity to the revenue is highly improper. If that were to be so, then each and every violation of law by the revenue would stand rectified by orders of remand. That is not the intent and purport of the Act. The period as specified in the Act requires to be strictly complied with. Therefore, the plea of the revenue for a direction to pass fresh orders of assessment after complying with the provisions of section 158BC requires to be rejected. Consequently, question No. 5 is answered in favour of the assessee and against the revenue. 6. We have heard learned counsel for the parties. We are aware of the decision of the Apex Court which has been referred by the Bombay High Court. Nonetheless, while block assessment is to be made, the Assessing Officer is having knowledge about the statutory provision and while issuing notice he should have mentioned in it about his source ..... X X X X Extracts X X X X X X X X Extracts X X X X
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