Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2019 (9) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (9) TMI 1042 - HC - Income TaxBlock assessment u/s 158BC - non-service of notice under Section 143(2) - procedure for assessment of such cases under Chapter XIV-B of the Income Tax Act, 1961, which includes, inter alia, Section 158BC - Assessee seeks to urge the ground based upon non-service of notice under Section 143(2) - Whether non-issuance of notice under Section 143(2) of the Income Tax Act, 1961 vitiates that assessment proceedings under Section 158 BC? - substantial question of law - HELD THAT:- There is no dispute from the record that notice under Section 143(2) of the Income Tax Act was never issued to the Assessee before initiating of proceedings under Section 158BC of the Income Tax Act. The Commissioner (Appeals), in his Order dated 13.09.2004 has given several reasons as to why the issuance of such notice was not a prerequisite for initiating of assessment proceedings under 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 for determining of undisclosed income for block assessment in proceedings under Section 158BC, provisions of Section 142, 143(2) and 143(3) are applicable and no assessment can be made without issuing notice under Section 142 of the said Act - Decided in favour of the Assessee and against the Revenue.
|