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2012 (10) TMI 426 - HC - Income TaxWhether notice under Section 158 BC cannot be treated as invalid in view of the provisions as contained in section 292B of the Act – Held that:- Intent and purport as provided under section 158 BC is to serve a notice on the assessee by providing a time of not less than 15 days and not more than 45 days - grant of extra time is without authority of law. It cannot validate an invalid notice - when the sum and substance of the notice issued to the assessee is not in conformity with the purpose of the Act, section 292B has no application - The waiver or the consent cannot override the provisions of statue. What is mandated cannot be diluted. - in favour of the assessee Whether section 240 of the Act is not applicable to Chapter XIV-B of the Act and therefore, the taxes paid pursuant to the return filed in the block assessment is liable to be refunded – Held that:- For Clause (b) of proviso to section 240 to apply, the taxes should have been paid by the assessee voluntarily - revenue cannot contend, that the refund adjusted is to be treated as tax paid, so as to deny the assessee the refund due, subsequently, due to annulment of assessment. Payment of taxes voluntarily is different from adjusting the refund without reference to the assessee - It cannot be held that the assessee has paid taxes and accordingly, in terms of proviso to section 240 to deny refund to the assessee - Commissioner of Income Tax (Appeals) exceeded his jurisdiction to deny the refund - in favour of the assessee Jurisdiction - refund – Held that:- Jurisdiction of the Appellate Authorities to adjudicate the issue of refund in the Appellate proceedings is consequential upon the validity of the assessment proceedings. Having recorded a finding by holding that the entire assessment proceedings are invalid, the question of the jurisdiction of the appellate authorities therefore would not arise for determination Whether Appellate Authorities should have directed the Assessing Officer to pass a fresh order of assessment in view of holding that the notice is invalid - revenue contended that if the notice was held to be invalid, the Assessing Officer should have been directed to pass a fresh order of assessment by complying with the limitation in terms of section 158BC – Held that:- Time to be granted in terms of section 158BC is mandatory. Having failed to comply with the same, granting another opportunity to the revenue is highly improper - period as specified in the Act requires to be strictly complied with. Therefore, the plea of the revenue for a direction to pass fresh orders of assessment after complying with the provisions of section 158BC requires to be rejected - in favour of the assessee
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