TMI Blog2016 (11) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... - Decided in favour of assessee - DB Income Tax Appeal No. 30/2006, DB Income Tax Appeal No. 172/2003, DB Income Tax Appeal No. 15/2004, DB Income Tax Appeal No. 26/2004, DB Income Tax Appeal No. 50/2004 - - - Dated:- 3-11-2016 - K. S. Jhaveri And Mahendra Maheshwari, JJ. For the Appellant : Sanjay Jhanwar For the Respondent : Parinitoo Jain JUDGMENT K. S. Jhaveri, J. 1. All these appeals are preferred by the assessee against the judgment order of the Tribunal whereby the Tribunal has allowed the appeal preferred by the department and cross objections filed by the assessee was dismissed. 2. In the first matter namely Income Tax Appeal No. 30/2006 following question was framed:- Whether the notice issued u/s 158BC of the Income Tax Act of 1961 by the assessing officer in the present case to file the return 'within 15 days' does not violates the provision of section 158BC which requires to issue a notice providing time of not being less than 15 days which implies clear 15 days and hence whether the assessment framed on the basis of such illegal and invalid notice is not bad in law? 3. Following questions were framed in appeal No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with various other High Courts relevant to the facts of the case at hand. In the case of State of Karnataka v. Muniyalla, AIR 1985 SC 470, it is held that merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other provision of law. In the case of Hukumchand Mills Ltd. v. State of Madhya Pradesh (1964) 52 ITR 583 (SC); AIR 1964 SC 1329, the apex court has ruled that mere mistake in the opening part of the notification in reciting the wrong source of power does not affect the validity of the amendments made. In the case of State Bank of Patiala v. S.K. Sharma (1996)3 SCC 364, the apex court ruled that in the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. The order passed in violation of such provision can be set aside only where such violation has occasioned prejudice to the subject. It further went on to observe that even a mandatory requirement can be waived by the person concerned, if such mandatory provision of law is conceived in his interest and not in the public interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet, in many instances, the courts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their jurisdiction in considerations of justice. It is a well-known fact that often to enforce the law to its letter produces manifest injustice, for frequently equitable and humane considerations, and other considerations of a closely related nature, would seem to be of a sufficient calibre to execute or justify a technical violation of the law. In the case of Balchand v. ITO (1969) 72 ITR 197, the apex court ruled that merely because of a defect in service of notice, the assessment order does not become invalid. Similarly, the apex court in the case of Jai Prakash Singh (1996) 219 ITR 737 went on to hold that non-service of notice under section 143(2) of the Income-tax Act, 1961 to 9 out of 10 representatives of the deceased did not invalidate the order of the Assessing Officer relating to the assessment year in question. 2. Venad Properties Private Limited v. Commissioner of Income-tax (2012) 340 ITR 463 (Delhi), particularly, paragraph Nos. 11, 12 and 18 which are reproduced as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement can be waived by the person concerned, if the mandatory provision is conceived in his interest and not in the public interest. The conduct of the subject is required to be examined and kept in mind. Procedural rules are assigned to afford a full and proper opportunity to the person concerned to defend himself. 3. Commissioner of Income-tax v. Jagat Novel Exhibitors P. Ltd. (2013) 356 ITR 559 where at paragraph Nos. 41 and 45, it was observed as follows: 41. The aforesaid observations are significant. In the present case, the Tribunal has not held that the jurisdictional preconditions were missing or not satisfied. Reasons to believe have been recorded. Notice has also been issued within the limitation period. The question whether the notice was addressed to the correct person has been examined and dealt with by us above. Service of notice is not the jurisdictional precondition but a matter pertaining to making of the order of assessment. Before an assessment order is passed, the notice must be served. As noticed above, on February 21, 2002, Vijay Narain Seth, director of the respondent company appeared before the Assessing Officer. The respondent had also f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58BA(2) is the charging section, section 158BB provides for computation of undisclosed income for the block period, whereas section 158BC provides the procedure for block assessment. In the decision in Sakthivel Bankers (supra) this court held that failure to mention the provision in the notice was not a circumstance which could be said to vitiate the ultimate order. The said decision relates to the assessment made consequent on the search conducted in assessee s place and notice was issued thereon to eight firms and to the wife of the assessee. Referring to Section 158BD, this court held that non mentioning of the purpose for which the notice was issued or the source of the authority of the Officer issuing the notice per se would not defeat the aspect of the persons against whom the notice issued were fully aware of the purpose of issuing notice. 17. In the light of the above said decision of this court as well as in view of the Bombay High Court cited supra, we reject the contention of the assessee that the non mentioning of the block period would defeat the very assessment. Quite apart from this, the assessee participated in the inquiry conducted under section 131 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected. Consequently, question No. 5 is answered in favour of the assessee and against the revenue. 6. We have heard learned counsel for the parties. We are aware of the decision of the Apex Court which has been referred by the Bombay High Court. Nonetheless, while block assessment is to be made, the Assessing Officer is having knowledge about the statutory provision and while issuing notice he should have mentioned in it about his source of power and should have referred to time which is required to be given for the purpose of filing of return under section 158BC of the Act. The words mentioned in the notice are within fifteen days whereas the provision mandates the time of not less than fifteen days . In view of the decisions of the Supreme Court referred more particularly New India Industries Ltd. (supra), we are of the opinion, fifteen days means, clear fifteen days which is the requirement under law. In that view of the matter, we are of the view that the notice which was issued by the authority asking the assessee to file the return within fifteen days is not in accordance with the provisions of the Income-tax Act and therefore it is invalid. In our view, the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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