TMI Blog2015 (3) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 143(2) has not been followed at all. - Decided in favour of assessee. - TAX APPEAL NO. 1385 of 2007 - - - Dated:- 5-12-2014 - MR. KS JHAVERI AND MR. K.J.THAKER, JJ. MR SN DIVATIA, ADVOCATE FOR THE APPELLANT MR SUDHIR M MEHTA, ADVOCATE FOR THE RESPONDENT ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. Being aggrieved and dissatisfied with the impugned order passed by the Income Tax Appellate Tribunal, Ahmedabad Bench A (hereinafter referred to as ITAT) dated 19.01.2007 in ITA No. 3203/Ahd/2004 for the Assessment Year 1998-99, the assessee has preferred the present Tax Appeal. 2. This appeal was admitted on 09.04.2008 for consideration of the following substantial questions of law: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w not res integra in view of the decision of this Court dated 10.03.2014 rendered in Tax Appeal No. 1357 of 2007 which involved identical issue. This Court in the said decision has held as under: 6. When challenged before the Tribunal, it also concurred with the view of CIT(Appeals). Therefore, the present appeals by the Revenue challenging these concurrent findings. The Tribunal exhaustively dealt with this issue and referred to various pronouncements on the subject. It also had at length discussed the issue of 12 months of issuance of notice from the date of filing of the return. It concluded thereafter that the Revenues contention is not sustainable that when details were called for by virtue of the issuance of notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he main provision requires Assessing Officer to prima facie arrive at satisfaction of existence of any one of the three conditions. Proviso under the said sub-section states : provided that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished . On a plain reading of the language in which the proviso is couched it is apparent that the limitation prescribed therein is mandatory, the format of provision being in negative terms. The position in law is well settled that if the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer in repudiation of the return filed under section 158BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of section 142, sub-sections (2) and (3) of section 143. 9. In the instant case, we notice that both CIT(Appeals) and the Tribunal have held that the procedure prescribed for issuance of notice under section 143(2) has not been followed at all. This realm of fact has not been disputed by the Revenue. In view of this decision of the Apex Court, the assumption of the jurisdiction of issuance of notice of reopening itself would not be sustainable, and therefore, this Court does not require to indulge into the concurrent findings of both the authorities. In absence of fulfillment of man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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