TMI Blog2004 (6) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... n is furnished. As per s. 148 the provisions of this Act shall apply to the return filed under s. 148 as if such return is a return required to be furnished under s. 139, and as per proviso to s. 143(2) where a return has been made under s. 139, no notice under s. 143(2) shall be served on the assessee after the expiry of 12 months from the end of the month in which the return is furnished. The AO issued the notice under s. 143(2) after the expiry of 12 months from the end of the month in which the return is furnished, so the assessment framed is time-barred and, hence void ab initio and may be quashed. 3. The learned CIT(A) while considering but not accepting the plea of the assessee has concluded to confirm the order of the AO as per para 3 of his order as under: "I have given careful consideration to the rival submissions made by the learned Authorised Representative of the appellant and found that there is no matter in it. The appellant filed the return of income declaring income of Rs. 82,000 on 31st Oct., 1994. This return was duly processed under s. 143(1)(a) on 23rd Nov., 1994, without making any prima facie adjustment. The case was selected for scrutiny and the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. In our case notice under s. 143(2) is issued after the expiry of twelve months from the end of the month in which the return is furnished, so the assessment framed is time-barred, hence void ab initio. Learned CIT(A), Bhatinda, has erred in allowing the assessment framed by AO under s. 143(3) even when the notice under s. 143(2) is not issued in time by virtue of the provisions of s. 292B of the IT Act, 1961, whereas no time-limit is prescribed under s. 292B of the IT Act, 1961, which reads as under: 'No notice of income, assessment, notice, summons or other proceedings, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceedings is in substance and effect in conformity with or according to the intent and purpose of this Act.' 6. The learned Departmental Representative, on the other hand, relied upon the orders of the authorities below and pleaded for confirmation of the same. It was further submitted that ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under s. 139." 9. As is seen from the above, the significant relevant phrase is "so far as may be, apply" and this phrase came for consideration before the Pune Bench of the Tribunal in the case of Vijay Kapoor vs. Dy. CIT in ITA No. 340/Pn/2002, Block period, 1st April, 1988 to 9th Sept., 1998, dt. 13th March, 2003, (authored by one of us, JM) in the context of time-limit as prescribed in proviso to s. 143(2) in relation to the assessment under Chapter XIV-B wherein similar provision as envisaged in cl. (b) of s. 158BC was under consideration and the relevant portion of the order is reproduced as under: "As is seen from the above, the significant relevant phrase is "so far as may be, apply" and it is not a case of lifting of provisions of s. 143/142/144 as it is but has made its application conditional with the said phrase and this phrase came up for consideration before various Courts including Hon'ble Supreme Court on more than one occasion and in the case of Dr. Pratap Singh Anr. vs. Director of Enforcement Ors. it has opined at pp. 173-174 as under : 'Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruled to describe referential legislation and meaning of 'so far as may be' and has held as under: 'The next question that arises for consideration is, whether, even assuming that the terms of s. 3(3) are applicable, its terms are wide enough to take in not merely the provisions of the Central Excises and Salt Act, 1944, and, in particular, its definition clauses, as they stood in 1957, on the date when the 1957 Act came into force, but also the amendments effected therein from time to time. The answer to this question depends upon the general principles applicable to what is described as 'referential legislation' of which this is an instance. Legislatures sometimes take a short cut and try to reduce the length of statutes by omitting elaborate provisions where such provisions have already been enacted earlier and can be adopted for the purpose of hand. While, on the one hand, the prolixity of modern statutes and the necessity to have more legislations that one on the same or allied topics render such a course useful and desirable, the attempt to legislate by reference is sometimes overdone and brevity is achieved at the expense of lucidity. However, this legislative device is q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon'ble Supreme Court of India out of which later one is of Constitutional Bench, which makes the meaning of the phrase 'so far as may be' amply clear, that is, 'to the extent necessary and practical', therefore, for the purpose of block assessment provisions of s. 143(2) can be applicable to the extent necessary and practicable as the provisions of s. 158BC(b) do not incorporate specific provisions of s. 143(2) and it only declares generally that provisions of s. 143(2) shall apply 'so far as may be' and if the relevant provisions in relation to the manner of assessment of undisclosed income as detected in the search, the issuance of notice, filing of the return in Form 2B and period of completion of assessment, etc. as given in Chapter XIV-B is seen it would transpire that only for giving opportunity, recourse to s. 143(2)/142(1) can be taken, especially when s. 158BC(b) does not incorporate s. 143(2) specifically. So far as assessment under Chapter XIV-B is concerned, the same cannot be equated either with the assessment and reassessment under s. 147 or assessment under s. 143(3) or 144. This view gets further strengthened by the Hon'ble Gujarat High Court decision where clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment for the asst. yr. 1995-96 pursuant to the returns filed by the assessees'. In a writ petition it was contended by the assessees that the total income for the asst. yr. 1995-96 was already computed in the assessment orders for the block period and, therefore, no regular assessment for the asst. yr. 1995-96 could be computed and that the returns of income filed by them in respect of the asst. yr. 1995-96 was required to be filed. Held, (i) that the notices issued under s. 143(2) were in respect of the regular assessment and the AO was within his jurisdiction to proceed with the same as per s. 143(3) and make a regular assessment of the total income/loss of the previous year for the asst. yr. 1995-96, notwithstanding the fact that the said previous year was included in the block period for the purpose of assessment of the undisclosed income and that such assessment was already done, and was the subject-matter of challenge before the Tribunal. Any question or problem that may arise in implementing the said provision or other provisions of Chapter XIV-B had no bearing whatsoever on the question whether the AO had jurisdiction to proceed with the regular assessment for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment under s. 147 are different. 12. Keeping in view the discussion as held above in foregoing paragraphs, considering the language as used in cl. (b) of s. 158BC and other provisions of Chapter XIV-B, the provisions of s. 143(2) are found to be applicable to the extent necessary and practical. Since the assessment under s. 143(3) relates to normal assessment, assessment and reassessment under s. 147 relate to income escaping assessment, and assessment under Chapter XIV-B relates to undisclosed income found during the search and seizure operation, therefore, these are different and distinct in character, as has been held by the Courts and the words 'so far as may be apply' give the meaning 'to the extent necessary and practical'. Therefore, in my considered view, provision of s. 143(2) in its entirety cannot be made applicable to block assessment and same can be to the extent and for the purposes of opportunity only as same are necessary and practicable in terms of provisions and scheme of Chapter XIV-B of the Act. Therefore, the plea of the assessee in this regard is found to be untenable and as such is rejected. Case law relied upon by learned counsel is found to be not app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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