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ITO, Ward-3 (1) , Surat Versus Shri Vijaybhai R. Topiwala

2015 (12) TMI 964 - ITAT AHMEDABAD

Assessment under section 158BC(c) - non issue of notice - whether issuance of notice happens to be within the statutory limitation of one year? - Held that:- A perusal of section 143(2) proviso as it existed being substituted w.e.f. 1.4.2008 makes it clear that no notice under clause (ii) of Section 143(2) shall be served after the expiry of twelve month from the end of the month in which the return is furnished. The expression “served” in our view happens to be much distinct than the expression .....

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) notices were involved. The Revenue’s fails to point out any distinction on facts or law. We accordingly reject its first contention.- Decided in favour of assessee.

Whether Section 158BC in chapter XIV-B is a complete code in itself wherein section 143(2) does not apply in toto? - Held that:- Section 158BC(b) clearly stipulates the procedure to be followed by an Assessing Officer in determining undisclosed income of the relevant block period in the manner laid down in section 158BB .....

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t : Shri M.K. Patel, A.R. ORDER Per S. S. Godara, Judicial Member This Revenue s appeal and assessee s cross objection for A.Y.1990-91 to 1999-00 and upto on 29.7.2009, arises from order of CIT(A)-II, Surat, dated 24.5.2010 in case no.CAS/II/420/09-10, in proceedings under section 158BC(c) of the Income Tax Act, 1961, in short the Act . 2. The Revenue s sole substantive ground challenges the CIT(A) order accepting assessee s argument that the notice issued u/s.143(2) was not validly served for q .....

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aggregating to ₹ 40,50,950/- pertaining to the impugned block period from assessment year 1990-91 to 29.7.1999. 4. The assessee preferred appeal. He challenged validity of the section 142(3) notice on the ground that the same was not served within a period of twelve months from the end of the month of furnishing the return in question. The CIT(A) has accepted this legal plea for invalidating the assessment framed in question as under: 6. I have carefully considered the matter. I have discu .....

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impugned assessment order as passed. There was thus a delay of seven months and 26 days. In the case of Hotel Blue Moon (supra), the Hon'ble Supreme Court has observed: "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 blockreturn. Omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedural irregularity and the .....

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intention of the legislature was to exclude the provisions of Chapter XIV of the Act, the legislature would have or could have indicated that also. A reading of the provision would clearly indicate, in our opinion, if the AO, if for any reason, repudiates the return filed by the assesses in response to notice under Section 158 BC(a), the AO must necessarily issue notice under Section 143(2) of the Act within the time prescribed in the proviso to Section 143(2) of the Act. Where the legislature .....

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Accordingly, 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) of the Act. The submissions of the counsel for the Revenue that the expressions 'so far as may be apply' indicates that it is not expected to follow the provisions of secti .....

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d also the decision of the Hon'ble Delhi High Court in the case of Pawan Gupta & Ors (2009) 223 CTR 487. The Hon'ble Court also approved the decision of the Hon'ble Guwahati High Court in the case of Bandana Gogol (2007) 289 ITR 28. 6.2 Further, in the cases of Jayprakash J Mangtani V/s ACIT (2009) 22 DTR 320, Jashmatbhai Nanubhai Vidiya V/s ACIT IT (SS) A NO. 41 & 85/Ahd/2003, and Arvindbhai C Jhaveri V/s ACIT Central Circle-4, Surat in IT(SS)A 39 and 94/AHD/2003, the Hon .....

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Services Ltd. V/s DCIT (2008) 115 TTJ (DEL) 528 (iii) Rakesh S Mardia V/s DCIT (2002) 74 TTJ (Ahd) 836 6.3 Thus, even before the Hon'ble Supreme Court had pronounced its decision in the case of Hotel Blue Moon, vide their order dated 02-02-2010, the Hon'ble ITAT Ahmedabad bench had already taken a firm view in this regard, treating all block-assessments as null and void where notice u/s 143(2) was served on the Assessee beyond the prescribed time limit. 6.4 Respectfully following the dec .....

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f the cases, I also do not find it necessary to decide the case on merits. 5. We have heard both the parties and gone through the case file. The Revenue s first argument is that the hon ble apex court in Hotel Blue Moon s case stipulates only issuance of section 143(2) notice within a period of twelve months from the end of the month of filing of the return. It produces original record of section 158BC notice asking for assessee s return dated 14.10.1999. The assessee s return came on 25.11.1999 .....

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