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TMI Blog2019 (8) TMI 1210X X X X Extracts X X X X X X X X Extracts X X X X ..... 58BC, which was mandatory and non service thereof is fatal. The order of the Tribunal dated 13.10.2005 as far as non-issuance of notice under Section 143(2) of the Act is set aside. - Decided in favour of the assessee - Income Tax Appeal No. - 2 of 2011 - - - Dated:- 21-8-2019 - Bharati Sapru And Rohit Ranjan Agarwal JJ. For the Appellant : S.K.Garg,Ashish Bansal For the Respondent : C.S.C./Income Tax,Manu Ghildyal,R.K.Upadhyaya,S. Chopra ORDER (PER HON'BLE ROHIT RANJAN AGARWAL,J.) 1. This appeal under Section 260-A of the Income Tax Act has been filed by the assessee challenging order dated 13.10.2005 passed by Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the block period on 23.07.1999. During course of block assessment proceedings, assessee initially surrendered 54 kg of silver ornament for taxation, the same was revised to 75 kg and finally to 100 kg. Assessing Officer treated 102.54 kg of silver ornament as unexplained and the balance as explained. The value of unexplained silver jewellery ornaments was determined at ₹ 4,33,907/-. The said amount was taxed in the assessment year 1999-2000. 4. Assessee had never filed return of income till action under Section 132 A was taken on 29.04.1998. Assessee, thereafter, filed return of income on 18.05.1998 for assessment year 1994-95 to 1997-98, while return for assessment year 1998-99 was filed on 31.10.1998. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fice of the Assessing Officer or to produce, or cause to be produced before the Assessing Officer any evidence on which the assessee may rely in support of the return: Provided that no notice under this sub-section shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.] (3)........................... 158BC . Where any search has been conducted under section 132 or books of account, other documents or assets are requisitioned under section 132A, in the case of any person, then,- (a) the Assessing Officer shall- (i) ....... (ii) . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period in the manner laid down in Section 158BB and the provisions of section 142, sub-sections (2) and (3) of section 143, section 144 and section 145 shall, so far as may be, apply. 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 Sections 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 Sections 143(2)/142, the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision would clearly indicate, in our opinion, if the Assessing Officer, if for any reason, repudiates the return filed by the assessee in response to notice under Section 158BC(a), the Assessing Officer 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 158BC(b) it has done so specifically. Thus, when section 158BC(b) specifically refers to applicability of the proviso thereto it cannot be excluded. We may also notice here itself that the clarification given by Central Board of Direct Taxes in its circular No.717 dated August 14, 1995, has a binding effect on the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave heard Sri Ashish Bansal, learned counsel for the appellant-assessee and Sri Manu Ghildyal, learned counsel for the Revenue and perused the material on record. 11. The question under consideration is as to whether issuance of notice under Section 143(2) is mandatory for making assessment under Section 158BC. The issue involved is no more res-integra and is covered by the decision of Apex Court in case of Assistant Commissioner of Income-Tax and another vs. Hotel Blue Moon (supra) , which has been followed by Division Bench of this Court in case of Virendra Dev Dixit (supra). 12. Counsel for the Revenue very fairly conceded that the matter stands covered by the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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