TMI Blog2009 (9) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee within the prescribed period and therefore he contended that the assessment order may be set aside being null and void. In this regard reliance was placed on the decision of the ITAT Ahmedabad Bench in the case of Jayprakash J Mangtani v ACIT [2009] 22 DTR (Ahd) (Trib) 320 as well as the decision of the Gauhati High Court in the case of Smt. Bandana Gogoi v CIT [2007] 289 ITR 28 (Gau) and that of Bombay High Court in the case of CWT vs HUF of H H Late J M Scindia [2008] 300 ITR 193 (Bom). Reliance was also placed on the decision of the Gujarat High Court in the case of DCIT v Mahi Valley Hotels and Resorts [2006] 287 ITR 360 (Guj). On the basis of these decisions it was submitted that since the notice u/s 143(2) was not issued by the Assessing Officer within the limitation period, therefore, the assessment framed in consequence thereof is void ab initio. Reliance was also placed on the decision of Pune Bench of the Tribunal in the case of ACIT vs. Aurangabad Holiday Resorts (P) Ltd. [2009] 118 ITD 1 (Pune) along with the decision of the Special Bench of ITAT in the case of Kuber Tobacco Products (P) Ltd. vs. DCIT [2009] 117 ITD 273 (Delhi) (SB), in which it was that sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been laid down in Chapter XIV-B of the IT Act for assessment of the search cases. Section 158BA empowers the AO to make the assessment of undisclosed income as a result of search. In the present case the AO had issued notice U/s 143(2) on 18- 07-2000 and in response to that the assessee had attended the assessment proceeding from time to time wherein it had never raised or objected that notice U/s 143(2) was not issued in statutory time limit as mentioned in second proviso given under sub section 143(2) of the IT Act. It is the first time raised in the appeal. 3. This technical ground raised by the assessee is not maintainable at this stage in the eyes of law. Since ,the section 158 BA empowers the AO to compute the undisclosed income in search cases, hence, time limit prescribed in second proviso given U/s 143(2) of the IT Act for scrutiny of a regular assessment is not applicable in search cases. Therefore, this technical ground of the assessee is not correct in eyes of law and deserve to be rejected. 4. This issue has been specifically decided by Lucknow Special Bench in the case of Shri Naval kishore Sons Jewellers v/s Dy. Commissioner reported in 87 ITD 407 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was originally introduced by the Direct Tax Laws (Amendment) Act, 1989, with effect from April 1, 1989. The issuance of notice under section 143(2) of the Act is in the course of assessment in the third mode, namely, scrutiny assessment. Section 143(2) of the Act requires that where a return has been made by an assessee, if the Assessing Officer considers it necessary or expedient to ensure that the assessee has not understated the income, 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. Under the proviso to the said sub-section no notice is to 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse to a notice issued under section 158BC. The circular issued by the Central Board of Direct Taxes provides that a notice under sub-section (2) of section 143 can I be served on the assessee during the financial year in which the return is furnished or within six months from the end of the month in which the return is furnished, whichever is later. The circular further provides that the Assessing Officer must serve notice under sub-section (2) on the assessee within this period if a case is picked up for scrutiny. It is further clarified that f a notice is not served under section 143(2), the assessee can take it that the return filed by him has become final and no scrutiny proceedings are to be started in respect of that return. The clarification given by the Board has a binding effect on the Department. Hence in the case of block assessment under Chapter XIV-B, where the Assessing Officer does not proceed to make assessment and determine the tax payable on the basis of the return filed in response to a notice under section 158BC(a), he has to follow the provisions of sub-section (2) of section 243. The requirement of a notice under subsection (2) of section 243 cannot be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an irregularity which is curable and not a nullity and, therefore, it was held that the assessment order passed in violation of such requirement could not be declared as null and void. The Coordinate Bench of this Tribunal while dealing with similar issue in the case of Jayprakash J Mangtani v ACIT [2009] 22 DTR (Ahd) (Trib) 320, has held as under:- There is no dispute that return of income was filed on 30th June, 2003 in response to the notice issued under s. 158BD. A copy of the notice under s. 143(2) is available on record. On perusal of this notice, it is clear that the same was issued on 5th April, 2005 and admittedly was served upon the assessee on 6th April, 2005. The notice issued under s. 143(2) has not been served upon the assessee within the prescribed period of one year and, therefore, the assessment order framed under s. 158BD is null and void and is liable to be quashed. Asstt. CIT v R P Singh (2007) 111 TTJ (Del) 880, CPR Capital Services Ltd. v Dy. CIT (2008) 115 TTJ (Del) 528 and Rakesh S Mardia vs Dy. CIT (2002) 74 TTJ (Ahd) 836 applied. 5. Now the question before us is whether the decision of the Special Bench or other High Courts will be binding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court. If one Division Bench differs another Division Bench of the same High Court, it should refer the case to a larger Bench. (iii) Where there are conflicting decisions of courts of coo jurisdiction, the later decisions is to be preferred if reached after full consideration of the earlier decisions. (d) The decision of one High Court is neither binding precedent for another High Court nor for courts or Tribunals outside its territorial jurisdiction. It is well-settled that the decision of a Court will have the force of binding precedent only in the State or territories on which the court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court it may, best, have only persuasive effect. By no amount of stretching of the doctrine of stare decisis, can judgments of one High Court be given the status of a binding precedent so far as other High Courts or Courts or Tribunals within their territorial jurisdiction are concerned. Any such attempt will go counter to t very doctrine of stare decisis and also the various decisions of Supreme Court which have interpreted the scope and ambit thereof. The fact that there is only one deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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