TMI Blog1987 (7) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the circumstances of the case, the Appellate Tribunal had material to come to the conclusion that the notice issued to the individual was only a mistake curable and not one which affects the jurisdiction although the assessment was made in the status of an 'association of persons' ? " The respondent is the Revenue. The matter relates to the assessment years 1974-75 to 1977-78. For these four years, no return of income was furnished in respect of " Archana Hotel ", Kottayam. On September 2, 1977, the Income-tax Officer issued notices under section 148 of the Income-tax Act for the first three years and issued a notice under section 139(2) read with section 148 of the Act for the assessment year 1977-78 to one Sasikumar with address at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof ", is only a mistake, defect or omission in the notices. It was argued that the notice was sent or proceedings were initiated to reopen or call for the return of income which is in substance and effect in conformity with or according to the intent and purpose of the Income-tax Act. The Appellate Tribunal held that the object of issuing the notice to Sasikumar was to assess the income of the business of Hotel Archana whoever may be the person in control and management of the business and the omission to specify the status as an " association of persons " is only an irregularity which will not invalidate the assessments. It was held that the Income-tax Officer was competent to go into the question whether the assessment is to be made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper person in accordance with law, the assessment would be illegal and without jurisdiction. The notice should specify the correct assessment year and should be issued to the particular assessee. Under section 2(31), "person" includes an individual or a Hindu undivided family or company, firm, an association of persons or body of individuals, whether incorporated or not, etc. They are distinct and different assessees. The service of a prescribed notice, on a particular assessee, who is to be assessed, is a condition precedent to the validity of any assessment to be made under section 147 of the Act. It is the very foundation of the jurisdiction of the Income-tax Officer. The above aspect of the matter is succinctly stated in Kanga and P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hivala's Lau, and Practice of Income Tax, Vol. I. (1976 edition), make the position clear. But, the Appellate Tribunal held that section 292B cures the defects or omissions in the instant case. Section 292B is as follows: " No return of income, assessment, notice, summons or other proceeding furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of area of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njoined by law. The entire proceedings are, in the circumstances, void and illegal and totally without jurisdiction. Such fundamental infirmity cannot be called a " technical objection " or mere " irregularity " and such vital infirmity cannot be cured or obliterated by relying on section 292B of the Income-tax Act. It is not a case of a notice issued or served, but which is beset with any mistake, defect or omission. This is a case of " no notice " to " the assessee ". As stated by the Calcutta Court in Sunrolling Mills P. Ltd. v. ITO [1986] 160 ITR 412 (at p. 416), section 292B does not empower the Income-tax Officer to act without jurisdiction. In that case, the Calcutta High Court held that section 292B does not authorise the Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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