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TMI Blog2019 (9) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 158 BC - According to us, such reasoning cannot any longer prevail after the ruling of the Hon ble Apex Court in the case of Hotel Blue Moon [ 2010 (2) TMI 1 - SUPREME COURT] as held that the requirements of issuance of notice under Section 143(2) within the prescribed period is not some procedural formality or a procedural irregularity to hold that such a requirement is mandatory and non-dispensable. Such defect of non-issuance of notice under Section 143(2) of the Income Tax Act is not even a curable defect. Record also indicate that this issue was precisely raised by the Assessee before the ITAT. The ITAT however, after recording that such issue was raised before it, failed to decide such issue one way or the other because, the ITAT held in favour of the Assessee on some other grounds. Substantial question of law will have to be decided in favour of the Assessee in view of the decision of the Hon ble Apex Court in Hotel Blue Moon (supra). Issuance of notice under Section 143(2) of the Income Tax Act, 1961 is a mandatory requirement and not some mere procedural irregularity and the same can be said to be curable. Even for the purpose of Chapter XIV-B of the Income Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken up for hearing. 6. Admittedly, the substantial questions of law so framed by the order dated 27.08.2008 arise in the context of a special procedure for assessment of such cases under Chapter XIV-B of the Income Tax Act, 1961, which includes, inter alia, Section 158BC. This provision relates to the provision for block assessment. 7. In the present case, before ITAT, there were Appeals filed by both, the Assessee as well as the Revenue which came to be disposed of by impugned Judgment and Order dated 10.12.2007. The Assessee had specifically raised a preliminary objection to the assessment proceedings on the grounds that no notice under Section 143(2) of the Income Tax act, 1961 was ever issued to them. This objection was noted by the ITAT. However, this objection was not decided by the ITAT because the ITAT deemed it appropriate to grant the Assessee relief on other grounds, i.e. the ground that this was not a case of "undisclosed income", which was regarded as one of the prerequisite for assessment under this Chapter. 8. The substantial questions of law framed in our Order dated 27.08.2008 therefore, mainly relate to this ground on the basis of which the ITAT chose to grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 260A(7), the provisions of Code of Civil Procedure (CPC) apply to Appeals to the High Court. He refers to the provisions of Order 41 Rule 33 of the CPC to submit that the Appellate Court has ample powers to consider the question of non-issuance of notice under Section 143(2) and decide the matter in favour of the Assessee. He also refers to provisions of Section 260A(6) of the Income Tax Act to submit that the High Court may determine any issue which has not been determined by the Appellate Tribunal. He submits that in the present case the ITAT failed to determine the issue of necessity of notice under Section 143(2) of the Income Tax Act and therefore, this Court may determine the same in this Appeal. 13. Mrs. Susan Linhares, learned Standing Counsel for the Appellant submits that there is no case made out for condonation of delay which is of over 2000 days in filing cross-objections. She submits that the Assessee was represented by an Advocate and there is no reason to hold that the Assessee was not properly advised in the matter. She further points out that the ITAT has recorded that no further arguments on any other points raised on behalf of the Assessee. 14. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... founded and may award such cost as it deems fit. (6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). [(7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.]" 16. Section 260A(3) provides that where the the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. 17. Section 260A(4) provides that the appeal shall be heard only on the question so formulated and the Respondents shall at the time of hearing of the appeal be allowed to argue that the case does not involve such a question. The proviso to this sub-section however states that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch according to us, is certainly involved in the matter, we proceed to decide the aforesaid substantial question of law with the consent of the learned Counsel appearing for the parties. 22. According to us, the aforesaid substantial question of law will have to be decided in favour of the Assessee in view of the decision of the Hon'ble Apex Court in Hotel Blue Moon (supra). The issue relating to service of notice under Section 1432(2) of the Income Tax Act is a issue which goes to the root of the matter. In Hotel Blue Moon( supra), the Hon'ble Supreme Court has now held that issuance of notice under Section 143(2) of the Income Tax Act, 1961 is a mandatory requirement and not some mere procedural irregularity and the same can be said to be curable. In its decision the Apex Court in clear terms has held that the omission on the part of the Assessing Authority to issue notice under Section 143(2)cannot be regarded as a procedural irregularity and the same is not curable and such requirement cannot be dispensed with. Hon'ble Apex Court has held that even for the purpose of Chapter XIV-B of the Income Tax Act for determining of undisclosed income for block assessment in p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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