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TMI Blog2019 (12) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... (for short, the Tribunal ). The following questions are presented for our consideration: i) Whether on the facts and circumstances of the case and in Law, the Tribunal erred in holding that the assessment was bad in law not appreciating the provisions of section 143(2) mandate that the AO served on the assessee a notice calling for evidence on which it may rely in support of the return of income and, in the instant case, a letter dated 29.05.2002 had been issued to the assessee, subsequent to the filing of return of income which substantially complies with the aforesaid provisions inasmuch as the additions to the total income made in the assessment order relate to issues raised in the said letter, on which the explanation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment. 3. The materials on record, however, show that as per the Tribunal, no notice under section 143 (2) of the Act was issued. The previous notice to which reference is made by the Revenue was only for collecting general information. 4. The Tribunal noted that after filing of the return, no scrutiny assessment notice was issued. That being the position, the appellant would be covered by the Supreme Court decision in the case of Assistant Commissioner of Income Tax, Hotel Blue Moon reported in [2010] 188 Taxman 113 (SC) in which it was held as under: 15) We may now revert back to Section 158 BC(b) which is the material provision which requires our consideration. Section 158 BC(b) provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) should be 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 158 BC(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 legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be in Section 153 BC(b), the issue of notice is not mandatory but optional and are to be applied to the extent practicable. In support of that contention, the learned counsel has relied on the observation made by this Court in Dr. Pratap Singh's case [1985] 155 ITR 166(SC). In this case, the Court has observed that Section 37(2) provides that the provisions of the Code relating to searches, shall so far as may be, apply to searches directed under Section 37(2). Reading the two sections together it merely means that the methodology prescribed for carrying out the search provided in Section 165 has to be generally followed. The expression so far as may be has always been construed to mean that those provisions may be generally follo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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