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TMI Blog2009 (8) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 143(2). The respondent submits that passing of order under Section 158BC(c) without issue of notice under Section 143(2) is bad in law and whole assessment proceedings becomes null and void. 2. As submitted by both the parties, we first deal with the legal issue raised in the cross-objection. 3. Shri Jitendra Sanghvi, the learned Counsel for the assessee submitted that the issue whether it is mandatory for the assessing officer to have issued a notice under Section 143(2), prior to passing an order under Section 158BC stands concluded in favour of the assessee by the decision of the jurisdictional High court in the case of CIT v. Ms. Mudra G. Nanavati IT Appeal (L) No. 3475 of 2008, dated 21-7-2009) copy of which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee had filed the appeal papers filed by the revenue wherein the grounds of appeal read as below: 4. (a) The Tribunal failed to appreciate that Section 158BC of the Act clearly states that the provisions of Section 143(2) would apply so far as may be meaning thereby that only the notice under Section 143(2) has to be issued for carrying out scrutiny assessment in search cases. It does not mean that the time-limit specified under the proviso to Section 143(2) is to be applied strictly for scrutinizing the return filed under Section 158BC. (b) The Tribunal failed to appreciate that Section 143(2) starts with the words where a return has been furnished under Section 139 or in response to a notice under Sub-section (1) of Section 142 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the prescribed period under Section 143(2) invalidates the assessment under Section 158BC ? 2. Whether in law for the purposes of proceedings under Section 158BC, a notice under Section 143(2) is required to be issued within a period of one year from the date of filing of the return under Section 158BC ? 3. Whether in law since the limitation for making an assessment under s. 158BC is already prescribed in law, a notice under Section 143(2) can be issued at any time before completion of assessment under Section 158BC as long as a reasonable opportunity of being heard has been given to the assessee before completion of assessment. 7. After considering the same, the Hon'ble court upheld, the order of the Tribunal where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undisclosed income in Form No. 2B, is satisfied with the same as reflecting the true state of affairs and no further information or explanation is called for from the assessee but where the assessing officer is not inclined to accept the return of undisclosed income filed by the assessee, the procedure in Section 143(2) has to be followed if an assessment order is passed in such a situation without issuing a notice under Section 143(2), it would be invalid and not merely irregular. 10. In view of the above and specifically in view of the binding nature of the decision of the jurisdictional High Court we allow ground No. 1 of the cross-objection and hold that the order passed under Section 158BC is bad in law. As the order of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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