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TMI Blog2015 (5) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to transfer or sale of stock-in-trade. " 3. "The appellant prays that the order of Ld. CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored." In the Cross Objection, the assessee has raised following grounds:- "1. Preliminary objections: (a) The appeal has been filed by the Assistant Commissioner of Income Tax, Circle-6 (3), Mumbai [hereafter the ACIT], whereas the assessment was made by the Income Tax Officer, Ward-6(3)(2), Mumbai [hereafter the ITO], and even to-day the ITO is having jurisdiction over the case of the assessee; therefore, the appeal filed by the ACIT is not maintainable. (b) The main grounds of appeal starts with "on the facts and circumstances of the case" which means the facts found by the ld. Commissioner of Income Tax (Appeals) [hereafter the CIT (A)] are admitted and undisputed and therefore in view of the CBDT's Instruction No. 1493 dated 18-11-1982 and reiterated vide Instruction No. 1894 dated 16-06-1992, the appeal is not maintainable. "2. The assessment made is without jurisdiction, particularly because: (a) Any valid notice u/s 143 (2) of the Income Tax Act, 1961 [hereafter the Act] was not issued within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice u/s 143(2) within the stipulated time period renders the assessment void and invalid. He has relied upon the Judgment of Hon'ble Supreme Court in the case of ACIT Vs. Hotel Blue Moon 321 ITR 362 as well as decision of Hon'ble Jurisdictional High Court in the case of Commissioner of Wealth-Tax Vs. HUF of H.H. Late J.M. Scindia 300 ITR 193 . He has further submitted that as per the directions of the Tribunal, the Assessing Officer has filed the affidavit in support of the case of the revenue that the notice u/s 143(2) was duly issued and served upon the assessee on 23.10.2007. The Ld. Counsel has submitted that the assessee has denied the service of the alleged notice. Even there is no mention on the alleged service of the notice as to whom the notice was served by the Assessing Officer. He has pointed out that the Assessing Officer has claimed to have served the notice in person through Inspector but there is nothing on record as to whom the notice was served. Event the affidavit filed by the revenue is not of the person concerned who has issued the notice or served the same allegedly on the assessee. Thus, the Ld. Counsel has submitted that the order passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment proceedings, then the case falls u/s 292 BB of the Income Tax Act and it shall be deemed as the notice u/s 143(2) was duly served upon the assessee in accordance with the provisions of the Act. He has further submitted that the assessee has not raised any objection for non receipt of notice u/s 115WE(2) which was served along with notice u/s 143(2), therefore, there was a valid service of the notice u/s 143(2) on the assessee. He has referred the affidavit filed by the Assessing Officer, Anil Kumar Gupta, DCIT, Cir- 6(3) and submitted that since 27.06.2008, the assessee had been regularly attending the assessment proceedings up to 19.12.2008. Therefore, the facts and circumstances of the case proves that the notice u/s 143(2) was duly served upon the assessee. 5. In rejoinder, the Ld. Senior Counsel has submitted that the assessee has filed the affidavit in which he denied any service of notice u/s 115WE(2). He has also referred the fringe benefit tax assessment and submitted that since the Assessing Officer has accepted the return, therefore, there was no question of any objection or any proceedings under the fringe benefit assessment. 6. We have considered the riv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This notice does not bear any name of the person or identification of the person to whom it was served. Only one signature appears on it with date 23.10.2007and time 1.20 P.M. therefore, from the copy of the alleged notice, it can not be ascertained as to whom the notice was served. Even, otherwise the assessee is a company and the notice served on the assessee must bear the signature of the authorized person of the assessee along with seal and at least the name and designation of the person who received the notice. In the case in hand there is nothing on record to show that to whom the notice was served and whether the recipient of the notice was authorized person of the assessee or at least belonging to the assessee. The affidavits filed by the revenue of one Mr. Anil K. Gupta is neither the then Assessing Officer who issued the notice nor having personal knowledge about the fact of service of notice. In the affidavit, the officer has made the claims on the basis of the assessment record. Even from the affidavits, it can be seen that the deponent has not claimed to have served the notice u/s 143(2) and given the details of issuance of notice. As regards the alleged notice u/s 115 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return is filed, this clause enables the assessing officer to complete the assessment by following the procedure like issue of notice under Sections 143(2)/142 and complete the assessment under Section 143(3). This Section does not provide for accepting the return as provided under Section 143(i)(a). The assessing officer has to complete the assessment under Section 143(3) only. In case of default in not filing the return or not complying with the notice under Sections 143(2)/142, the assessing officer is authorized to complete the assessment exparte under Section 144. Clause (b) of Section 158 BC by referring to Section 143(2) and (3) would appear to imply that the provisions of Section 143(1) are excluded. But Section 143(2) itself becomes necessary only where it becomes necessary to check the return, so that where block return conforms to the undisclosed income inferred by the authorities, there is no reason, why the authorities should issue notice under Section 143(2). However, if an assessment is to be completed under Section 143(3) read with Section 158-BC, notice under Section 143(2) should be issued within one year from the date of filing of block return. Omission on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;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 notice the observations made by this Court in the case of Maganlal Vs. Jaiswal Industries, Neemach and Ors., [(1989) 4 SCC 344], wherein this Court while dealing with the scope and import of the expression "as far as practicable" has stated "without anything more the expression `as far as possible' will mean that the manner provided in the code for attachment or sale of property in execution of a decree shall be applicable in its entirety except such provision therein which may not be practicable to be applied." 8. A similar view was taken by the Hon'ble Jurisdictional High Court in the case of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or has not computed excessive loss, or has not underpaid tax in any manner, he shall serve on the assessee a notice requiring him either to attend his office, or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return. Therefore, the language of the main provision requires the Assessing Officer to prima facie arrive at satisfaction of existence of any one of the three conditions. The 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 the 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 it shall be done in such a manner and in no other manner, such requirements are, in all cases absolute and neglect to attend t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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