TMI Blog2007 (9) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... l but concurring submissions, we admit this additional ground for disposal on merits. 5. Briefly stated the facts of the case are that the assessee filed a return declaring loss of Rs. 64,298 on 26-6-2003 in response to notice under section 148 served on the assessee on 17-3-2003. It is borne out from the assessment order that notice under section 142(1) was issued on 5/6-1-2004. After series of adjournments, the assessment order was passed on 31-3-2004 by computing total income at Rs. 42,78,790. The first appeal was dismissed. 6. Before us, the ld. Counsel for the assessee contended in support of his additional ground that the Assessing Officer had not issued notice under section 143(2). The only notice referred to in the assessment order was issued under section 142(1) and the mandatory condition for issuance of notice under section 143(2) was not complied with. It was submitted that in the absence of such notice, assessment order was null and void and deserved to be quashed. He relied on several decisions of this Bench and other Benches in which issuance of notice under section 143(2) after expiry of time limit of 12 months under section 148 was held to be improper and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch notice under section 148 was properly issued by the Assessing Officer. The ld. AR. has not pressed the additional ground on the question of validity of notice under section 148, which brings us to the stage that such notice under section 148 was validly issued. The ld. AR. has relied on several orders passed by the different Benches of the Tribunal holding that if the notice under section 143(2) is served after the prescribed period of 12 months from the end of the month in which return is filed then the resultant assessment made is invalid. In support of this proposition, he has relied on series of orders headed by the case of Raj Kumar Chawla. We observe that the view taken by the Jodhpur Bench of the Tribunal and several other Benches by following the decision of the Special Bench in the case of Raj Kumar Chawla is in consonance with the ratio laid down in the Special Bench case. The benefit given by way of these decisions is sought to be withdrawn by the Legislature through the insertion of proviso to section 148 by the Finance Act, 2006 with retrospective effect from 1-10-1991 by laying down that if a notice under section 143(2) is served after the expiry of 12 months but b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recting the assessee to file return within 10 days as against the prescribed period of 15 days for filing return as per mandate of section 158BC(a). The assessee assailed the grant of time for 10 days and contended that the resultant assessment so made be quashed. The Special Bench was constituted to decide that in such a case where notice for less than 15 days was given to the assessee, whether such assessment should be quashed or whether it is a mere procedural irregularity, which can be cured with the result that the assessment may only be set aside to be reframed after curing the defect. After considering the detailed submissions and numerous judgments/orders passed by the Hon'ble High Courts and Benches of the Tribunal, the Special Bench came to conclude that the defect of giving 10 days time instead of required 15 days was a procedural error as notice under section 158BC is a procedural notice and hence assessment so framed cannot be quashed. Accordingly the assessment order was set aside and the matter was restored to the file of the Assessing Officer for passing order de novo after issuing valid notice under section 158BC in accordance with law. 9. Almost to the same exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid notice under section 148, cannot come in the way of making the assessment void ab initio. It is true that the issuance of notice under section 143(2) is mandatory and if it is not issued, there would be an irregularity, but such an irregularity cannot go to the root of the proceedings. The fact remains that the Assessing Officer was within his jurisdiction to initiate reassessment proceedings, which he rightly did by issuing a valid notice under section 148. The non-issuance of notice thereafter under section 143(2), in our considered opinion cannot make the order null and void By following the judgment of the Hon'ble Jurisdictional High Court and other cases discussed above we set aside the impugned order and restore the matter to the file of the Assessing Officer with the direction to issue a valid notice under section 143(2) before embarking upon the assessment. Needless to say that the assessee would be allowed a reasonable opportunity of being heard in such de novo proceedings. 13. The ld. A.R. has raised another inter-connected issue being the non-availability of time for issuance of notice under section 143(2). According to him, no notice can be served upon the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deciding particular issue de novo. In such a situation, the hands of the Assessing Officer would be tied down, which, in our considered opinion, is a misreading of the provisions of section 143(2). What is meant by the said time limit under the proviso is that a valid assessment order should be passed initially by the Assessing Officer within the prescribed time. It does not apply to the giving effect to directions given by the appellate authorities for the removal of procedural irregularities in the assessment order already passed. 14. We are reminded of the decision of the Hon'ble Madras High Court in the case of Lakshmi Jewellery v. Dy. CIT [2001] 252 ITR 712. In this case there was search in the premises of the assessee. Assessment was framed. When the matter traveled to the Tribunal, it remanded the matter back to the Assessing Officer for making a fresh assessment. The assessee contended before the Hon'ble Court that as per section 158BE, the period of limitation was one year from the date of search and since that time had elapsed long before, the direction of the Tribunal for remanding the matter back to the file of the Assessing Officer was invalid as the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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