TaxTMI 
TaxTMI 
2011 (7) TMI 252
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....he course of search, cash amounting to Rs.22,500/- and jewellery of the value of Rs.4,15,879/- was found at the residence and jewellery of the value of Rs.2,77,703/- was found in the locker. A notice under section 153A was issued to the assessee, in response to which he filed a return declaring total income of Rs.90,080/-. Two questionnaire dated 07.12.2007 and 27.12.2007 were issued to the assessee which were duly complied by him. After hearing the assessee, the total income was computed at Rs.23,31,760/-. 3. Aggrieved by the order, the assessee preferred appeal before the CIT (A). An additional ground taken before the CIT (A) was non issue of notice u/s 143 (2). It was contended that since the issuance of notice u/s 143 (2) is a mandatory requirement, the assessment made was bad in law and void ab-initio and required to be cancelled. The CIT (A) did not agree with the contention of the assessee and upheld the assessment as framed by the Assessing Officer. 4. Another ground taken before the CIT (A) was against the addition of Rs.10 lakh u/s 69A of the Act in the hands of assessee in respect of cash seized from Shri Dalbar Singh Rawat, an employee of the assessee, at Bhopal Railw....
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....has not been produced for examination before the Assessing Officer. No proposal to have been made for his production before the ld. CIT (Appeals). No such suggestion has been made even before us. Therefore, evidence on record suggests that the claim is an afterthought made by the nephew to accommodate the assessee. If the money really belonged to the nephew, action to claim the money would have been taken soon after its seizure by the police. Therefore, the evidence arising very much belatedly lacks the ring of truth in it. Any person of normal prudence, while seeing such an evidence, will come to a conclusion that it is only an accommodating claim. Therefore, we agree with the learned CIT(A) and hold that this amount has been rightly included in the total income of the assessee." 6. It is against this order of the Tribunal that the assessee has preferred appeal before us. Learned counsel for the assessee contends before us that to examine or verify any return filed under Section 153A, the issuance of notice under section 143 (2) of the Act is a mandatory requirement. He submits that it cannot be construed as an empty formality or a procedural defect which can be cured, but goes t....
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.... in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed3 form and verified in the prescribed manner and setting forth such other particulars as may be prescribed3 and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139 ; ....................." 9. There is no specific provision in the Act requiring the assessment made under section 153A to be after issue of notice under section 143(2) of the Act. Learned counsel for the assessee places heavy reliance on the judgment of the Hon?ble Supreme Court in Hotel Blue Moon v. DCIT, (Supra) wherein it was held that the where an assessment has to be completed under section 143(3) read with section 158BC, notice under section 143 (2) must be issued and omission to do so cannot be a procedural irregularity and the same is not curable. It is to be noted that the above said judgment was in the context of Section 158BC. Clause (b) of Section 158BC expressly provides that "the AO shall proceed to determine the undisclosed income of the block period in the manner ....
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....der Section 139. Learned counsel relies upon R. Dalmia v CIT (supra) wherein the question of issue of notice under Section 143(2) was examined with reference to Section 148 by the Supreme Court in the context of Section 147. The Apex Court held as under: "As to the argument based upon Sections 144-A, 246 and 263, we do not doubt that assessments under Section 143 and assessments and reassessments under Section 147 are different, but in making assessment and re-assessments under Section 147 the procedure laid down in Sections subsequent to Section 139, including that laid down by Section 144B, has to be followed." 12. The case of R. Dalmia v CIT (supra) primarily was with regard to applicability of section 144B and Section 153 (since omitted with effect from 01.04.1989) to the assessment made under section 147 and 148 and thus cannot be said to be the decision laying down the law regarding mandatory issue of notice under Section 143(2). 13. The words "so far as may be" in clause (a) of sub section (1) of Section 153A could not be interpreted that the issue of notice under Section 143(2) was mandatory in case of assessment under Section 153A. The use of the words, "so far as may b....