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TMI Blog2008 (5) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the block period on 23/2/01. He pointed out that as per the scheme of the block assessment the A.O. either can accept the return filed by the assessee as it is within the contemplation of Section 158BC(a) of the Act, however, if the A.O. wants to scrutinize the documents and other details then he was supposed to issue a notice under Section 143(2) within 12 months from the date of filing the return. The moment this limitation expires the A.O. has no jurisdiction to investigate the details and pass an order under Section 158 BC of the Act the notice under Section 143(2) was issued on 12/4/02 i.e. after the expiry of 12 months from the date return was filed. In support of his contention he relied upon the decision of the Hon'ble Gauhati High Court rendered in the case of Smt. Bandana Gogoi v. CIT and Anr. 289 ITR 28. He also relied upon the following orders of the Tribunal wherein this decision of the Gauhati has been followed: (1) Mumbai ITAT's order dt. 27/7/07 in the case of Vin Vish Corporation P. Ltd. in IT(SS)A No. 364 506/M/2003. (2) Delhi ITAT's order dt. 29/8/2007 in the case of Atul Glass Industries Ltd in IT(SS)A Nos. 237 317/Del/2003. (3) De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re would be imperative, in the present case jurisdiction for passing an assessment under Section 158 BC flows from the incident of search. The jurisdiction is to be vested in the A O by Section 158 BA of the Act and not by Section 158BC. 4. We have duly considered the rival contentions and gone through the record carefully. The ITAT Mumbai in the case of M/s Vin Vish Corporation Pvt. Ltd. has considered the decision of Hon'bie Gauhati High Court as well as two other orders of the ITAT Delhi in detail. The findings recorded by the Tribunal read as under: 7. The Learned Counsel explained that the block return was filed by the assessee on 6.6.2000 and any notice under Section 113(2) has to be issued within a period of one year from the end of the month in which the return was filed. Therefore, in the present case, the learned Counsel submitted that the notice under Section 143(2) ought to have been issued by the Assessing Authority on or before 30.6.2001, whereas the notice was served on the assessee only on 22.10.2001, which is very much beyond the due date of 30.6.2001. He therefore, submitted that the notice was barred by limitation, and therefore, the consequent assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) on this point. 11. We considered the matter in detail. While deciding the matter against the assessee, the learned CIT(A) has relied on the decision of the ITAT Delhi Bench in the case of Action Electronics v. DCIT in ITA No. 5215/Delhi/96 and in the case of Electronica Components v. DCIT in ITA No 5216/Delhi/96, wherein the Tribunal has held that Provisions of Section 112(1) and Section 143(2) are procedural and that these Provisions are in regard to the issuance of notice for the purpose of allowing opportunity before completion of assessment and there will be no difference as assessee was allowed opportunity for explaining and filing the details in regard to the search material. 12. We are afraid that the above decisions of the Delhi Tribunal do not match with the facts of the present case placed before us In those cases the Tribunal was in fact examining a case where the Assessing Authority had not issued notice under Section 143(2). Where the Assessing Authority is accepting return filed by an assessee as such, and no addition or adjustment is contemplated, it is not necessary for the Assessing Authority to issue notice under Section 143(2). The question of issui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question that the procedure adopted in completing the said assessment would be relevant for determining whether the words 'as far as may be' are mandatory or directory in the case at hand. The Court, after examining the case, found that the Assessing Officer did not act upon the return filed by the assesses. He had issued notice under Section 142(1). He had proceeded to make an inquiry. This could not be done without a notice under Section 143(2) the provisions of Sub-section (3) show, that the power under this sub-section should be invoked only after service of notices under Sub-section (2). The Assessing Officer admittedly did not follow the proceedings of Sub-section (2) of Section 143. The words so far as may be , will thus become mandatory where the Assessing Officer proceeds to make an inquiry in repudiation of the return filed in response to a notice under Section 158BC. Similarly, application of the provisions of Section 142 and Sub-sections (2) and (3) of Section 143 will become directory where the Assessing Officer does not embark upon an inquiry to determine the loss or profit reflected in the return filed. The Court relied on the decision of the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of a notice under Sub-section (2) of Section 143 cannot be dispensed with in a case where the Assessing Officer proceeds to make an inquiry for the purpose of assessment, and determination of taxes payable after issuing notice under Section 142(1) as well. 17. When the facts of the present case are analysed, we find that the decision of the Gauhati High Court, mentioned above, is squarely applicable. Wherever the Assessing Officer has made inquiries in a return filed in response to notice under Section 158BC, the Assessing Officer has to issue notice under Section 143(2). This is mandatory. If no notice is issued under Section 143(2), the consequent assessment would be void. It is equally true that any assessment made on the basis of an invalid notice is also invalid. A notice barred by limitation is no notice at all. In the present case, the notice under Section 14-1(2) is issued beyond the prescribed time limit of one year. Therefore, the notice issued by the Assessing Officer under Section 143(2) is a time barred notice. It is as good as there was no notice. In these circumstances, following the decision of the Gauhati High Court, we hold that the impugned block assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the higher wisdom of the Court above, and therefore, once an authority higher than this Tribunal has expressed its esteemed views on a an issue, normally, the decision of the higher judicial authority is to be followed. The Bench has further held that the fact that the judgment of the higher judicial forum is from a non-jurisdictional High court does not really alter this position, as laid down by the Hon'ble Bombay High Court in the case of CIT v. Godavaridevi Saraf (supra). For slightly different reasons and along with some other observations on the issue, which we shall set out a little later, we are in agreement with the conclusions arrived in this case. 6. That takes us to the question whether this decision stands overruled by the Hon'ble Bombay High Court's later judgment in the case of Thana Electricity Supply Ltd.(supra), as submitted by the learned Departmental Representative. 7. It is also important to bear in mind that the question requiring adjudication by their Lordships was whether or not decision of one of the High Courts was binding on the other High Courts. This will be clear from the following observations made by their Lordships in the beginni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court decision is binding on another High Court or not. That admittedly was the core issue decided by then Lordships As for the binding nature of non jurisdictional High Court decisions on the Tribunal, the observation made by their Lordships have held that the even in the case of Hon'ble Supreme Court judgments which are binding on all Courts, except Supreme Court itself, but what is binding of course is the ratio of the decision and not every expression found therein' their Lordships have also referred to the all quoted judgment of the Hon'ble Supreme Court in the case of CIT v. Sun Engineering Works (P) Ltd. (1992) 107 CTR (SC) 209 : 1992 198 ITR 29 (SC) wherein it is held that it is neither desirable nor permissible in pick out a word or a sentence' from the judgment of this Court, divorced from the context of question under consideration, and treat it to be complete law declared by this Court. 10. In this light, and bearing in mind the fact that limited question before their Lordships was whether or not decision of one of the High Courts is binding on another High Court, it would appear to us that ratio decided in, Than Electricity Supply Ltd.(supra), is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er High Court, whereas in Godavandevi Saraf's case (supra), their Lordships dealt with the issue whether or not a non jurisdictional High Court is to be followed by a Bench of the Tribunal To that extent, and irrespective of some casual observations on the applicability of non-jurisdictional High Court judgments on subordinate Courts and Tribunals, these two decisions deal in two different areas. As we have noticed earlier also, in Thana Electricity Supply Ltd's case (supra), a note was taken of Godavaridevi Saraf's judgment (supra) and neither the said judgment was dissented nor overruled. In any event, in Thana Electricity Supply Ltd's case (supra), Hon'ble Court was alive to the fact, which was acknowledged in so many words, that a co-ordinate Bench decision cannot be overruled. In view of the matter, it is difficult to hold, as has been strenuously argued before us by the learned Departmental Representative, that the Hon'ble Bombay High Court's judgment in the case of Godavaridevi Sarf's (supra) stands overruled by their Lordships Judgment in the case of Thana Electricity Supply Ltd. (supra). The only way in which we can harmoniously interpret th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n held that conditions provided in Section 165 of the CRPC are to be followed by the Custom Officials while conducting the search. If they have deviated from those conditions then they are supposed to give justification for the deviation when a challenge before the Court of law is made. Therefore the expression provided so far as may be would be fulfilled by the officials: In the present case the proviso appended to Section 143(2) infuse powers in the A.O for making a scrutiny assessment. It provide a time limit of one year. If that time limit is expired then A.O. cannot scrutinize the return field by the assessee. It is altogether a different footing. Even otherwise we have to adjudicate whether in view of the decision of the Hon'ble Supreme Court in the case of Dr. Pratap Singh can direct decision of Hon'ble Gauhati High Court in the case of Smt. Bandana Gogoi be ignored. In our opinion this decision of the Hon'ble Supreme Court is under different circumstances and not a direct decision, whereas the decision of Hon'ble Gauhati High Court is directly applicable on the facts of the present case. The ITAT has been consistently following this decision of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whatever one's own view may be), barring, of course, certain exceptions, like where the decision is sub silentio. Per incuriam, obiter dicta or based on a concession or takes a view which it is impossible to arrive at or there is another view in the field or there is a subsequent amendment of the statute or reversal or implied overruling of the decision by a higher court or same such or similar infirmily is manifestly perceivable in the decision Such practice or policy is followed in income-tax matters by the Bombay High Court since a long time, as is evident from the decisions in Maneklal Chunilal Sons Ltd. v. CIT and CIT v. Chimanlal J Dalai Co. . This High Court is an offspring of the Bombay High Court and there is nothing to show that the policy or practice followed in the Bombay High Court has been consciously departed from by this High Court. On the contrary, in CIT v. Garden Silk Weaving Factory , while dealing with an argument to the effect that there being a decision of the Bombay High Court, on the point, there, under consideration, the view expressed in the said decision should be accepted, even if it does not appeal to the court, on the principle of comity of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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