TMI Blog2017 (1) TMI 1501X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumawat vs. CIT [2016 (11) TMI 1385 - RAJASTHAN HIGH COURT]. The questions referred to us are, therefore, answered in favour of the assessee and against the revenue. - D. B. Income Tax Appeal No. 204 / 2004 - - - Dated:- 10-1-2017 - K. S. Jhaveri And Vinit Kumar Mathur, JJ. For the Appellant : Mr. Aditya Vijay For the Respondent : Mrs. Parinitoo Jain JUDGMENT Per Hon ble Jhaveri J. 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has partly allowed the appeal filed by the department. The assessee has filed this appeal. 2. The Court while admitting the appeal on 21.12.2004, framed the following substantial questions of law: 1. Whether the notice issued under Section 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 violate the provisions 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? 2. Whether the compliance to an illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the revenue has further contended that the notice which is contemplated within fifteen days from the date of service is to be construed keeping in mind the decisions which are rendered by different High Courts. He contended that the notice was issued which the assessee has received and no contention was raised against the same before the Assessing Officer. The assessee filed return of income on 13.1.1999 for the relevant assessment year and thereafter, the assessee has raised the contention before the Tribunal that the Assessing Officer has not given sufficient time to the assessee to file the return of income and therefore, the notice issued by the Assessing Officer is invalid. He has further contended that in view of section 292B read with section 158BC of the Act, the Tribunal has committed serious error in reversing the decision of the Commissioner of Income-tax(Appeals) and the Assessing Officer. He has relied on the following decisions: (1) Shirish Madhukar Dalvi v. Assistant Commissioner of Income-tax and others [2006) 287 ITR 242 (Bom) where the Bombay High Court has observed as follows: Before we deal with the aforesaid contentions raised on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her a statute would be directory or mandatory will depend upon the scheme thereof. Ordinarily, a procedural provision would not be mandatory even if the word `shall is employed therein unless a prejudice is caused. In Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar (2005) 2 SCC 188, the apex court has observed as under (page 212): 74. In this case, it is not necessary for us to go into the question as to whether section 83 is imperative in character or not inasmuch as it is settled law that even where the expression `shall is used, the same may not be held to be mandatory. Even a mandatory provision having regard to the text and context of the statute may not call for strict construction.75. In U.P. State Electricity Board v. Shiv Mohan Singh (2004) 8 SCC 402, this court stated the law in the following terms: ( SCC p. 440, paras 96-97) `96. Ordinarily, although word `shall is considered to be imperative in nature it has to be interpreted as directory if the context or the intention otherwise demands. (see:Sainik Motors v. State of Rajasthan, AIR 1961 SC 1480, 97. It is important to that in Crawford on Statutory Construction at page 539, it is state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities. 18. In view of our findings on the second contention, which are against the appellant-assessee and in favour of the revenue, the third contention loses its relevance and is not required to be decided. However, we may notice that the Tribunal in this regard has followed the judgement of the Bombay High Court in Shirish Madhukar Dalvi (2006) 287 ITR 242 (Bom.), wherein a distinction has been made between service of notice under sections 147 and 158BC of the Act. It has been held that section 158 BC is a procedural section and not a substantive section and, therefore, the ratio and the decision in State Bank of Patiala v. S.K. Sharma (1996) 3 SCC 364 applies. In the said case, the Supreme Court held 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y foundation to initiate proceedings against the assessee, the non-mentioning of the block period in the notice would cut at the very root of the assessment proceedings. Learned standing counsel for the revenue placed before us the decision in Shirish Madhukar Dalvi v. Asstt. CIT (2006) 287 ITR 242 / 156 Taxman 79 (Bom.), Smt. Mahesh Kumari Batra v. Jt. CIT (2005) 146 Taxman 67/95 ITD 152 (Asr.) (SB) as well as Sakthivel Bankers case (supra) (255 ITR 144) and submitted that when the assessee had acted on the notice and filed the return knowing fully well the period of block assessment, yet considering the fact the notice issued under section 158BD is only procedural and not related to assumption of jurisdiction, it is not open to the assessee to contend that the assessment was not valid. 16. As far as the non mentioning of the block period in the notice issued under section 158BD is concerned, in the decision relied on by learned Standing Counsel for the revenue in Shirish Madhukar Dalvi s (supra) the Bombay High Court considered the nature of the proceedings contained in section 158BD. On going through the provisions contained under sections 147, 148 and 158BC, the Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee s contention. 5.1 He has further relied on the decision of the Karnataka High Court in the case of Commissioner of Income-tax v. Micro Labs Ltd. reported in (2012) 348 ITR 75 (Karnataka) to submit that calling upon the assessee to file the return of income within a period of 15 days is in violation of mandatory period of time as stipulated under section 158BC of the Income-tax Act. He has contended that the Karnataka High Court after considering the decision of Bombay High Court in the case of Shrish Madhukar Dalvi v. Asst. CIT (2006) 287 ITR 242, has observed that the defect in the notice is vital and held that notice under section 158BC is mandatory. In paragraph No. 26 of the said judgement, the Karnataka High Court has observed as under: The contention is unacceptable. The time to be granted in terms of section 158BC is mandatory. Having failed to comply with the same, granting another opportunity to the revenue is highly improper. If that were to be so, then each and every violation of law by the revenue would stand rectified by orders of remand. That is not the intent and purport of the Act. The period as specified in the Act requires to be strictly com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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