TMI Blog2015 (5) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of assessment framed under section 153A, in consequence of search under section 132, is merely an irregularity and the same is curable? (b) Whether on the facts of the case, failure on the part of the Assessing Officer to issue notice to the assessee as per provisions of sub-section (2) to section 143 shall have the effect of rendering the entire assessment framed under section 153A of the Act as null and void? 2. Subsequently, the Principal Commissioner of Income-tax (DR) also raised a third question, which is noted by Shri D.Manmohan, Hon'ble Vice-President, viz:- (a) Whether it is necessary to issue notice under section 143(2) to acquire jurisdiction in proceedings under section 153A of the I. T. Act? 3. Under these circumstances, in the Third Member reference, the Hon'ble Vice-President, put forth two preliminary issues for decision, as under- (a) Whether the Hon'ble President / Third Member is competent to reframe the points of difference to bring to focus the issues that emerge out of the orders passed by the respective Members of the Division Bench? and (b) Whether the learned CiT-DR is authorized to request the Hon'ble Preside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ....The case of the Revenue is that the expression so far as may be apply indicates that it is not expected to follow the provisions of section 142, sub-sections (2) and (3) of section 143 strictly for the purpose of block assessments. We do not agree with the submissions of the learned Counsel for the Revenue, since we do not see any reason to .restrict the scope and meaning of the expression so far as may be apply . In our view, where the Assessing Officer in repudiation of the return filed under section 15BBC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of section 142, subsections (2) and (3) of section 143. (page 370) (emphasis supplied). Learned Counsel for the assessee also contended that the jurisdictional High Court in ACIT v. Geno Pharmaceuticals Ltd. in Tax Appeals No.75, 76, 77 78 of 2012 after noticing the factual matrix holds ........However, ITAT dismissed the appeal by order dated 11th May,. 2012 and accepted the new ground which was raised by the respondent, namely That the notice under Section 143(2} of the Act is mandatory and it is not a procedural irregularity .Similarly, for the AY 2006-2007 also the same orders were passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of notice u/s 143(2) is mandatory and on similar facts he also relies upon the decision of the Allahabad High Court in CIT v. Rajeev Sharma [(2011) 336 ITR 678 (Allahabad)]. Learned Counsel submits that the provisions of law dealt with in the judgments (supra) are no different from those of the provisions of requirement of issuance notice in proceedings u/s 153A of the Act. 7. Learned Departmental Representative places reliance on the decision of the Delhi High Court in Ashok Chaddha v. ITO [(2011) 337 ITR 399 (Delhi)}. This was a case u/s 153A of the Act and the question raised was whether the provisions of section 143(2) of the Act for issuance of notice are attracted or not. In this case, two issues were raised for the consideration of the High Court, viz,, (a) Whether the issue of notice under section 143(2) of the income-tax Act is mandatory for finalization of assessment under section 153A?, (b) Whether the findings of the authorities below upholding the addition of ₹ 10 lakhs of cash seized from Mr. D. S. Rawat in the hands of the assessee was perverse and required to be set aside? . The issue was answered by the High Court against the assessee. Proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0] 321 ITR 362 (SC), is thus not applicable to the facts of the present case. 10. The decision of Lunar Diamond Ltd.[2006] 281 ITR 1 (Delhi); Vardhman Estates [2006] 287 ITR 368 (Delhi) and Bhan Textiles [2006] 287 ITR 370 (Delhi) relied upon by learned counsel for the assessee related to the requirement of service of notice upon the assessee within a prescribed time and thus not applicable to the present case. The case of Pawan Gupta [2009] 318 ITR 322 (Delhi) related to mandatory issue of notice under section 143(2) of the Act in the case of regular assessment as also on block assessment. This being a case of assessment based on search under section 153(A), the same is not applicable to the present case, in the case of Raj Kumar Chawia [2005] 227 ITR (AT) 225 (Delhi) [SB] relied upon by learned counsel for the assessee was that of the Tribunal, wherein, a view was taken that if a return filed under section 148 of the Act is sought to be scrutinized, the compliance of provision contained in proviso under section 143(2) of the Act is mandatory. The issue of requirement of notice under section 143(2) for an assessment under section 147 came up for consideration before this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extent of mandatory issue of notice under section 143(2), As is noted, a specific notice was required to be issued under clause (a) of sub-section (1) of section 153A calling upon the persons searched or requisitioned to file return. That being so, no further notice under section 143(2) could be contemplated for assessment under section 153A. 14. No specific notice was required under section 143(2) of the Act when the notice in the present case as required under section 153(A)(1)(a) of the Act was already given. In addition, the two questionnaires issued to the assessee were sufficient so as to give notice to the assessee, asking him to attend the office of the Assessing Officer in pension or through a representative duly authorized in writing or produce or cause to be produced at the given time any documents, accounts, and any other evidence on which he may rely in support of the return filed by him. (pages 404 to 406) 8. Learned Counsel for the assessee urges that the decision ignores the ratio laid down in Hotel Blue Moon (supra) as also of the jurisdictional High Court in Geno Pharmaceuticals Ltd. (supra). Adverting to the first submission, the case of Hotel Blue Mo ..... 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