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TMI Blog2016 (9) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... ame was passed on 29.12.2006 against the due date and last date of passing the assessment order being 31.03.2006 as per the provisions of Section 153 of the Income Tax Act, 1961. 2. The facts in brief are that the assessee was searched u/s 132 of the Act whereas the assessment after search proceedings was framed u/s 143(3) read with section 148 instead of 143(3) read with 153A. At the outset, learned AR appearing on behalf of the assessee vehemently submitted before us that the issue of assessment being barred by limitation has been decided by the decision of co-ordinate bench of this Tribunal in assessee s own case in ITA No.2968/M/2011 in assessment year 2004-05 vide order dated 19.01.2015 in the same search proceedings wherein it has been held that assessment as framed by the AO was invalid and barred by limitation. The learned DR has fairly agreed with the submissions of learned AR that the issue is covered in favour of the assessee as stated above. 3. After hearing the rival submissions and perusing the material on record, we find that the issue raised in ground no.2 by the assessee qua the assessment order passed is barred by limitation as the same was passed after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would to be governed by the provisions of section 153A of the Act,as the action u/s.132A was taken after 31.05.2003. Explaining the scope of the section 143A,the Hon‟ble Jharkhand High Court has,in the case of Abhay Kumar Shroff (290ITR114),held as under: From a bare reading of the provisions of sections 153A, 153B and 153C of the Income-tax Act, 1961 and the Departmental Circular No. 7 dated September 5, 2003, it is manifestly clear that after May 31 ,2003,the earlier provision of block assessment in the case of search initiated against the assessee, shall not apply. Instead, the provision that there shall be single assessment on undisclosed income comprising previous years relating to six assessment years preceding that in which the search was conducted, shall apply. It further provides that the Assessing Officer shall issue notice to such person requiring him to furnish return of income in respect of six assessment years immediately preceding the assessment year relating to the previous year in which the search was conducted under section 132 or requisition was made under section 132A of the Act. The second proviso to section 153A makes it clear that assessment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisitioned, though from different locations. Moreover, the seizure or requisition must be of such a character as to persuade the Assessing Officer to even reopen closed assessments.In this sense,there is no hostile discrimination between the two categories of persons. From the above it is clear that for the actions taken w.e.f.01.06.2003,assessments will have to be completed as per the scheme of section 153A.The section provides for issuing of notice for assessing or reassessing the income of an assessee.From the records and the Grounds of Co.s.it clear that though in the cases under consideration notices had to be issued u/s.153 A of the Act,but were not issued.The AO had issued notices u/.148 of the Act.Issue of notice u/s.153A and 148 has been decided by the Hon‟ble M P High Court,in the case of Ramballabh Gupta (288ITR347),as under: In order to decide the legality and validity of the notice issued under section 148 of the Income-tax Act, 1961, it is necessary to see as to whether the conditions precedent provided in section 148 are satisfied or not. Once the conditions prescribed under section 148 are found present in the notice issued, in that event, the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii.) The signing of a notice issued under s.271(1)(a) of the Act,for showing cause why penalty should not be imposed on the assessee for delay in filing returns,is not a mere inconsequential technicality.It is a requirement of the provisions of O.5, r. 1(3) of the Civil Procedure Code, 1908, which are applicable by virtue of the provisions of section 282 of the Act.Section 282 of the Act provides that a notice under the Act may be served on the person named therein as if it were a summons issued by a court under the CPC,1908.Sub-rule (3) of r. 1 of O. 5 of the CPC provides that every summons shall be signed by the judge or such officer as he appoints.Therefore, in view of this provision, the notice to show cause why penalty should not be levied by the ITO should be signed by the AO and the omission to do so invalidates the notice and in such a situation section 292 B will not come to rescue of the AO. iv.) Section 292B might apply to a case where service of notice had already been effected and there is only a technical mistake in the notice.But,where no notice had been served,the section would not come to the help of the Department e.g.if a notice is not issued to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B of the Act. xii.) According to section 140 of the Act, every return has to be signed and verified.The word shall has been used in the section which shows that it is mandatory that every return should be signed and verified and if it is not signed and verified, then it is in breach of the provisions of section 140 of the Act.Therefore,this cannot be a defect which can be cured as per the provisions of section 292B of the Act and any return filed without signature and verification of the assessee will not be treated as a valid return. xiii.) Time barring assessment does not come within the purview of mistake,defect or omission referred in section 292B of the Act.In Peeru Lal,Mohan Lal (257ITR198),Hon‟ble Rajasthan High Court held that the expression mistake, defect or omission cannot be understood as one of procedure,so as to override the limitation prescribed by law. xiv.) Cancelling the registration of the firm on the ground of error in the allocation of shares among the partners,without issuing notice under section 158r.w.s.187 and 67 of the Act proposing to change the share allocation among the partners,involves question of jurisdiction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been properly assumed.In the matter of Norton Motors(275ITR595),the Hon‟ble P H High court has held as under: To put it differently,section 292B can be relied upon for resisting a challenge to the notice, etc.,only if there is a technical defect or omission in it. However, there is nothing in the plain language of that section from which it can be inferred that the same can be relied upon for curing a jurisdictional defect in the assessment notice, summons or other proceeding.In other words,if the notice,summons or other proceeding taken by an authority suffers from an inherent lacuna affecting his /its jurisdiction, the same cannot be cured by having resort to section 292B. If the facts of the case under appeal are considered in light of the above discussion,it becomes clear that the provisions of section 292B are not applicable.In the cross objections the AO wants us to treat us the assessment completed u/s.148 as assessment finalised u/s.153A of the Act.In our opinion,both the sections deal with different situations and notice issued under one section cannot be treated notice under another section nor can be assessment made under a particular section can be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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