TMI Blog2014 (2) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... fically refers to applicability of the provision, proviso thereto cannot be excluded - even for the purpose of Chapter XIV-B, for the determination of undisclosed income for a block period under the provisions of Section 158 BC, the provisions of Section 142 and sub-sections (2) and (3) of Section 143 are applicable and no assessment could be made without issuing notice under Section 143(2) - The Assessing Officer repudiates the return filed u/s 158BC (a) and proceeds to make an inquiry, he has necessarily to follow the provisions of Sections 142, 143(2) and 143 (3) of the Act - no notice u/s 143 (2) of the Act was issued by the Assessing Officer prior to the framing of the assessment u/s 158BC of the Act, the assessees are right in contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal, as held in 'ACIT Anr. Vs. Hotel Blue Moon', 321 ITR 362 (SC). 3. The ld. DR, on the other hand, has strongly supported the impugned order in this regard. 4. Apropos this issue, it is seen that in all these cases the search was conducted on 01.11.1996. However, undisputedly, no notice u/s 143 (2) of the Act was issued, whereas the respective assessment orders in all these cases were passed on 22.05.1998, u/s 158BC of the Act. Now, under similar circumstances, the Hon'ble Supreme Court, in the case of 'Hotel Blue Moon' (supra), has held, inter alia, that: "Section 158 BC(b) provides for an enquiry and assessment. The said provision reads "the assessing officer shall proceed to determine the undisclosed income of the Block period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot 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 the Section 158 BC(b) specifically refers to some of the provisions of the Act which are required to be followed by the assessing officer while completing the block assessments under Chapter XIV-B. 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, the legislature would have or could have indicated that also. A reading of the provision would clearly indicate that if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raming of the assessment u/s 158BC of the Act, the assessees are right in contending that the assessment framed was without jurisdiction. Respectfully following 'Hotel Blue Moon' (supra), we hold accordingly and quash the assessments in all these five cases as illegal, having been framed without jurisdiction. 6. For the above reason, the assessments in all these cases stand nullified and nothing survives for adjudication. It is for this reason that the merits of these cases, on our asking, were not argued by the parties. This issue of jurisdiction going to the root of the matter, even the issue of limitation is not being addressed, though arguments with regard thereto were duly put forth by the parties before us. 7. In the result, all t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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