TMI Blog2007 (1) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter XIV-B. Once the power of inquiry u/s 142 is invoked, the Assessing Officer has no option but to follow the provisions of section 143(2). Thus, we hold that the provisions of section 142 and sub-sections (2) and (3) of section 143 will have mandatory application in a case where the Assessing Officer in repudiation of the return filed in response to a notice issued u/s 158BC(a) proceeds to make an inquiry. The defects crept in cannot be cured at this stage in view of the limitation provided in section 143(2). The assessment order in the instant case thus suffers from both procedural and jurisdictional error. The option left with the Assessing Officer is to compute the income and levy taxes on the basis of the return filed by the assessee. The question formulated is answered against the Revenue and in favour of the assessee. Consequent thereupon, the orders passed by the authorities below are set aside. The appeal, accordingly, stands allowed. - D. Biswas And Smt. A. Hazarika JJ. For the Appellant : Dr. A. K. Saraf , S. K. Agarwal , P. Bothra , Ms. K. K. Jaim , Ms. N. Hawlia and Ms. M. Gope For the Respondents : U. Bhuyan JUDGMENT D. BISWAS J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edural irregularity, and for that reason the assessment order cannot be disturbed. The learned Tribunal was of the view that the return was filed in response to a notice under section 158BC and not under section 139 or in response to any notice under section 142(1) and, therefore, the requirement of notice under section 143(2) could be dispensed with. 4. Dr. Saraf, learned senior counsel for the assessee, argued at length to justify that even in the case of determination of undisclosed income for a block period under the provisions of section 158BC, the provisions of section 142 and sub-sections (2) and (3) of section 143 are applicable and no assessment could be made without issuing a notice under section 143(2). Dr. Saraf further contended that notice under section 143(2) could have been dispensed with by the Assessing Officer if he had proceeded to determine the income on the basis of the return without going for scrutiny. Referring to the provisions in clause (b) of the second proviso to section 158BC, Dr. Saraf argued that the words so far as may be do not denote that the Assessing Officer has been given the discretion to dispense with the requirement of such a notice und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh within such time not being less than fifteen days but not more than forty-five days, as may be specified in the notice a return in the prescribed form and verified in the same manner as a return under clause (i) of sub-section (1) of section 142, setting forth his total income including the undisclosed income for the block period : Provided that no notice under section 148 is required to be issued for the purpose of proceeding under this Chapter : Provided further that a person who has furnished a return under this clause shall not be entitled to file a revised return ; (b) the Assessing Officer shall proceed to determine the undisclosed income of the block period in the manner laid down in section 158BB and the provisions of section 142, sub-sections (2) and (3) of section 143, section 144 and section 145 shall, so far as may be, apply ; (c) the Assessing Officer, on determination of the undisclosed income of the block period in accordance with this Chapter, shall pass an order of assessment and determine the tax payable by him on the basis of such assessment ; . . . . 8. It would appear from the above that a notice under section 158BC(a)(ii) is a must before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in writing, allow or reject the claim or claims specified in such notice and make an assessment determining the total income or loss accordingly, and determine the sum payable by the assessee on the basis of such assessment ; (ii) issued under clause (ii) of sub-section (2), or as soon after wards as may be, after hearing such evidence as the assessee may produce and such other evidence as the Assessing Officer may require on specified points, and after taking into account all relevant material which he has gathered, the Assessing Officer shall, by an order in writing, make an assessment of the total income or loss of the asses see, and determine the sum payable by him or refund of any amount due to him on the basis of such assessment . . . . 10. Sub-section (1) of section 143 provides for assessment where a return has been made under section 139 or in response to a notice under sub-section (1) of section 142. It has no application in this case. Sub-section (2) requires service of two notices under two different circumstances. The first notice is to be issued under clause (i) of sub-section (2) only when the Assessing Officer has reason to believe that any claim or lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 480, the hon'ble Supreme Court had the occasion to deal with almost a similar situation with regard to the interpretation of the words so far as may be occurring in section 148 of the Act which provides for issue of notice in the case of escaped assessment. The Supreme Court was of the view that the provisions of section 144B being a procedural provisions could not be excluded by reason of the use of the words so far as may be . Though the judgment has been rendered in a different context, the ratio available therefrom is of significance in the facts and circumstances of the case. In the instant case, the assessee has filed his return pursuant to notices issued under section 158BC(a). The Assessing Officer was not satisfied, and he had proceeded to scrutinize the return. Therefore, he had no option but to follow the mandate of sub-section (2) of section 143. Under no circumstances, the Assessing Officer could straightway invoke the powers under clause (c) of section 158BC without first issuing notice under section 143(2). In CIT v. M. Chellappan reported in [2006] 281 ITR 444 (Mad), the question for determination before the Madras High Court was, whether, on the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in a case where the Assessing Officer decides to undertake scrutiny of the return filed in pursuance of a notice issued under sections 158BC(a) and 142(1), he has to follow the rigours of sub-sections (2) and (3) of section 143 as provided in clause (b) of section 158BC even in the case of block assessment. The court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is the determinative factor of legislative intent [Ref : Padmasundara Rao (Decd.) [2002] 255 ITR 147 (SC)]. From the discussion above and the ratio available in the judgment of the hon'ble Supreme Court in R. Dalmia [1999] 236 ITR 480 and various other decisions, we are of the view that the words so far as may be do not confer absolute discretion on the Assessing Officer to dispense with the requirement of a notice under section 143(2). 15. The learned Tribunal in the impugned judgment has observed that clause (b) of section 158BC only provides the manner of making assessment as provided in section 143(2) in so far as practicably possible in respect of block assessment and that the jurisdictional aspect ingrained in the proviso to section 143(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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