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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 ..... her on a true and correct interpretation of the provisions of section 143(2), the Tribunal was legally correct in holding that non-issuance/ non-service of notice thereunder, had no bearing on the validity of Block assessment order dated 28.04.2000 as had been passed by the Assessing Officer under Section 158BC read with section 143(3) of the Act? (ii) Whether the "Tribunal" was legally correct in holding that the provisions related to service of notice under section 143(2) stood dispensed with, after the assessee was given an opportunity of being heard by issue of notice under various other sections, from time to time, which the assessee had availed by his participation?" 3. Brief facts of the case are that assessee was intercepted by p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undisclosed income for the block period. Aggrieved by assessment order, the assessee filed appeal which was partly allowed by Commissioner Income Tax (Appeals)- II, Agra on 11.12.2001. The assessee challenged order of the CIT (A) before Tribunal, which was partly allowed on 13.10.2005 and the ground raised by assessee that the Assessing Officer not having issued any notice under Section 143(2) of the Act in block assessment which was mandatory, was turned down, and thus, the present appeal. 5. Before proceeding, it would be necessary to have a glance of provisions of Section 143(2) and Section 158BC of the Act. "143. (1)..................... (2) Where a return has been furnished under section 139, or in response to a notice under sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the want of issue of notice under Section 143(2) of the Act on the part of Assessing Officer was only a procedural error to be cured by suitable directions, and no prejudice was caused to the assessee. 7. He further submitted that the notice under Section 143(2) of the Act was mandatory in block assessment proceedings held under Section 158BC of the Act and non-issuance of such notice goes to root of the case. He relied upon a decision of the Apex Court in Assistant Commissioner of Income-Tax and another vs. Hotel Blue Moon, [2010] 321 ITR 362 (SC). Relevant portion relied upon is extracted below:- "We may now revert back to section 158BC(b) which is the material provision which requires our consideration. Section 158BC(b) provides for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with. The other important feature that requires to be noticed is that the Section 158BC(b) specifically refers to some of the provisions of the Act which requires to be followed by the Assessing Officer while completing the block assessments under Chapter XIV-B of the Act. This legislation is by incorporation. This section even speaks of sub-sections which are to be followed by the Assessing Officer. Had the intention of the Legislature been to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istant Commissioner of Income-Tax (2010) 41 DTR (All.) 43. 9. Per contra, counsel for the Revenue submitted that in proceedings under Section 158BC, there is no requirement of a notice to be issued under Section 143(2), as issuance of notice in block assessment under Section 158BC is separately prescribed. He also submitted that in case of search and seizure under Section 132 and in case of requisition of books of accounts under Section 132-A, the Assessing Officer is left with no discretion but to proceed with block assessment and procedure has been prescribed in Chapter XIV-B of the Act, while in ordinary assessment proceedings as envisaged under Chapter XIV of the Act, the notice under Section 143(2) is essential for production of mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
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