9911796707
TMI Blog2016 (7) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law relating to notice under section 143(2) of Act, 1961 since, if that question is decided in his favour, entire matter will be open to appellant to be raised before Assessing Authority. 3. With consent of learned counsel for parties, we proceed to hear this appeal finally on the following substantial question of law: " Whether Tribunal was justified in holding that non issue of notice under section 143(2) would not vitiate assessment, made by Assessing Authority, since Assessee filed return under section 148 after expiry of the period prescribed in law. " 4. It is not a disputed fact that before making assessment in question, no notice under section 143(2) was issued to the appellant by Assessing Authority. 5. Brief facts necessary to understand the dispute in question and for effective adjudication of the issues raised in this appeal are stated as under. 6. Appellant filed return for Assessment Year 2004-2005 on 17.7.2006 showing an income of Rs. 17,16,00,618/-. 7. Since return was filed after period prescribed for filing return under section 139 of Act 1961, Assessing Authority treated return as nonest and proceeded under section 148 by issuing notice under the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Act 1961 was issued on 9/10.12.2003 and served on Assessee on 10.12.2003 requring him to file his block return within a month of sevice of said notice. No such block return was filed within the statutory period under section 158BC. Block return was filed on 22.11.2004 declaring undisclosed income. Assessing Officer completed assessment under section 158BC of Act 1961 on 24.2.2005 adding income whereagainst Assessee preferred appeal wich was partly allowed. To the extent Assessee failed before Commissioner, he preferred further appeal before Tribunal. The questions formulated by Tribunal are: "1. CIT(Appeal) has erred in rejecting contention of appellant that Assessment Order framed under section 158BC/158BB is wrong, illegal, without jurisdiction as well as void ab-initio for want of Notice u/s 143(2) which is a mandatory requirement under I.T Act, 1961 to be served on appellant before passing order, if the A.O proceeds to assess undisclosed income. Reliance is placed on Hon'ble Supreme Court decision in case of Asstt.CIT & Anr.vs.Hotel Blue Moon reported in (2010) 229 CTR 219. 2. For that, as a matter of fact and law Return u/s 158BC of Act 1961 was filed on 22.11.2004 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under section 143(2) is incurable since it is not a mere procedural irregularity but a jurisdictional error. 15. Whatever may be the reason available to Assessing Officer to repudiates return filed by Assessee, but if it proceeds to make assessment, a notice under section 143(2) is mandatory. Some relevant observations from judgment in ACIT & another versus Hotel Blue Moon (Supra) may be reproduced as under: "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 section 143(2) and (3) would appear to imply that the provisions of section 143(1) are excluded. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 143 (2) and 142 (1) were also sent. In consequence thereof, the assessee filed return on 7.2.2002 for both the assessment years. After filing of return, the Assessing Officer should have applied mind and after considering the material on record on "reason to believe", notice under Section 143 (2) of the Act should have been issued afresh. 32. Since return was filed on 7.2.2002, in response to notice under Section 148 of the Act, earlier notice dated 29.03.2001 may not be treated as valid for the purpose of escaped assessment. The Legislature to their wisdom had categorically provided that after receipt of notice under Section 148 of the Act a fresh return may be filed and in consequence thereof, the Assessing Officer has to apply his mind to the contents of fresh return and then issue a notice under Section 143 (2) of the Act. The satisfaction under reason to believe, must be recorded by the Assessing Officer after applying mind to the contents of fresh return before issuing a notice under Section 143 (2) of the Act. It is a settled law that taxing statute should be construed strictly without subtraction or addition of words, in the statutory provisions. Accordingly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
