TMI Blog2023 (8) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... is filed. In the present case, a subsequent notice was issued u/s 142(1), which was responded with a return filed, within almost twelve days. The assessment was completed much after, but without issuing a notice u/s 143(2). This is not a case where there was no return filed, in which event it was also held in CIT v Devendranath G. Chaturvedi [ 2017 (6) TMI 732 - GUJARAT HIGH COURT] that a notice is required u/s 143(2). As held that in the circumstances when there was no return filed pursuant to a notice u/s 142(1), there is a requirement for a further notice u/s 143(2), which provision has been made applicable to Section 158BC. The assessment completed under Section 158BC without a notice under Section 143(2) cannot be sustained and the same has to be set aside Whether curable defect u/s 292BB? - Since Section 292BB only speaks of a notice being deemed to be valid in certain circumstances, when the assessee has appeared in any proceeding and cooperated in any enquiry relating to assessment or re-assessment. It does not take in the circumstances of a complete absence of notice; which does not stand cured under Section 292BB, especially in the teeth of such notice being f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 158BC issued earlier. The appellant filed a return on 22.11.2004 declaring undisclosed income of Rs.2,25,000/-. An order was passed under Section 158BC of the Act determining undisclosed income of Rs.7,71,955/-. 3. The assessment was completed without any notice under section 143(2) of the Act, but noticing in the order, that the assessee had ultimately filed the return of income in the prescribed form on 22.11.2004. The assessee took up the matter in first appeal before the first appellate authority which turned unsuccessful as is indicated from Annexure-2. A further appeal was taken to the Tribunal which also stood rejected. The Tribunal found that there is an outer limit of 45 days prescribed for a notice to the return to be filed under Section 158BC and any return filed after the said period would be non-est, thus enabling the assessing officer to proceed for assessment without any further notice under Section 143(2). The Tribunal also found that the absence of notice, if at all relevant would stand cured going by the provisions of Section 292BB, which though brought into the statute later to the assessment order, was merely a procedural clarification. It was furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 143(2)/142, the Assessing Officer is authorized to complete the assessment ex parte under Section 144. Clause (b) of Section 158BC excludes the application of Section 143(1), which provides for accepting the return as provided in Section 143 (1) (a). Section 143(2) becomes necessary only where it is required to check the return filed and in cases where block return conforms to the undisclosed income inferred by the authorities, there is no reason, why the authorities should issue notice under Section 143 (2). However, if an assessment is to be completed under Section 143(3) read with Section 158BC, notice under Section 143(2) should be issued within the time provided and any omission on the part of the Assessing Officer to issue such a notice under Section 143(2) would be a procedural irregularity; which is not possible to be dispensed with and also not curable. Though the block assessment under Chapter XIV-B of the Act is a complete code in itself, the procedure under Chapter XIV for regular assessment insofar as it is applicable to block assessments stands incorporated under clause (b) of Section 158BC; was the finding. The Circular referred to earlier also clarifies the requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifteen days; (ii) in respect of search initiated or books of account or other documents or any assets requisitioned on or after the 1st day of January, 1997, serve a notice to such person requiring him to furnish 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: 8. Notice under clause (a) (ii) of Section 158BC, as it stands, provides the assessee with a minimum period of fifteen days to file a return and also mandates that the authority shall not provide for a period in excess of forty-five days. It cannot, at all be said that there is a limitation provided by the above provision to file a return within 45 days. It incorporates the principle of a reasonable opportunity and also the need for expeditious conclusion of proceedings, with respect to the undisclosed income. Thus, ensuring least prejudice to assessee and the Revenue. The provision mandates that in a notice issued under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
