TMI Blog2013 (7) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of the block return filed the AO must necessarily issue notice u/s 143(1) within the time prescribed in the proviso to section 143(2) - Even for the purpose of Chapter XIV-B for determination of the undisclosed income for the block assessment under the provisions of section 158BC, the provisions of section 142 and sub-sections (1) and (3) of section 143 are applicable - No assessments could be made without issuance of notice u/s 143(2) where the AO in repudiation of the return filed u/s 158BC proceeds to make an enquiry he has to necessarily follow the provisions of section 142, sub-sections (2) and (3) of section 143 - the issuance of notice u/s 143(2) within the prescribed time limited for the purpose of making assessment u/s 143(3) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Revenue preferred appeals to the Tribunal. The Tribunal on the merits granted relief to the assessee. Aggrieved by the same, the Revenue has preferred I. T. A. No. 905 of 2006 and I. T. A. No. 904 of 2006 herein as before the Tribunal there were two appeals. The assessee filed miscellaneous application bringing it to the notice of the Tribunal that the notice was issued beyond one year period and, therefore, the entire proceedings is void ab initio. Following the judgment of the Special Bench the Tribunal held that those mandatory provisions are not applicable to block assessment proceedings. The said application was rejected. In the said application two grounds were urged one is regarding limitation. The second ground is that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee under section 143(2) within the prescribed period of time is a pre-requisite for framing the block assessment under Chapter XIV-B of the Incometax Act, 1961 ?" In the facts and circumstances of the case, the issuance of notice under section 143(2) of the Income-tax Act, 1961, within the prescribed time limited for the purpose of making assessment under section 143(3) of the Income-tax Act, 1961, is mandatory. The said question was answered by the apex court in the following manner (page 369) : "We may now revert back to section 158BC(b) which is the material provision which requires our consideration. Section 158BC(b) provides for enquiry and assessment. The said provision reads 'that the Assessing Officer shall proceed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing authority to issue notice under section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under section 143(2) cannot be dispensed with. The other important feature that requires to be noticed is that section 158BC(b) specifically refers to some of the provisions of the Act which require to be followed by the Assessing Officer while completing the block assessments under Chapter XIV-B of the Act. This legislation is by incorporation. This section even speaks of sub-sections which are to be followed by the Assessing Officer. Had the intention of the Legislature been to exclude the provisions of Chapter XIV of the Act, the Legislature would have or could have indicated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be applied to the extent practicable. In support of that contention, the learned counsel has relied on the observation made by this court in Dr. Partap Singh's case [1985] 155 ITR 166 (SC). In this case, the court has observed that section 37(2) provides that 'the provisions of the Code relating to searches, shall so far as may be, apply to searches directed under section 37(2). Reading the two sections together it merely means that the methodology prescribed for carrying out the search provided in section 165 has to be generally followed. The expression "so far as may be" has always been construed to mean that those provisions may be generally followed to the extent possible'. The learned counsel for the respondent has brought to our not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ock assessment. The provisions which are specifically included are those which are available in Chapter XIV-B of the Act, which includes section 142 and sub-sections (2) and (3) of section 143." Therefore, it is a clear omission on the part of the assessing authority to issue notice under section 143(2) is not a procedural irregularity. The same is not curable. Therefore, the requirement of notice under section 143(2) of the Act cannot be dispensed with. When the same is issued in respect of the block return filed, the Assessing Officer must necessarily issue notice under section 143(1) of the Act within the time prescribed in the proviso to section 143(2) of the Act. Even for the purpose of Chapter XIV-B of the Act, for determination of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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