TaxTMI 
TaxTMI 
1992 (8) TMI 125
X X X X Extracts X X X X
X X X X Extracts X X X X
....notice under section 143(2) of the Act. The plea was that, since, the notice under section 143(2) was never served, the assessment under section 143(3) of the Act, is bad and needs to be annulled. 2. The plea advanced by the counsel Shri Agarwal was that, the Assessing Officer had committed an illegal act, by not issuing the required notice, under section 143(2) of the Act. He submitted that, this illegal act of the officer is curable, by he being directed to issue the notice and then conclude the assessment. He submitted that when the CIT (Appeals) had heard the appeal, it was much after the expiry of the time that is allowed for the making of the assessment under section 153(1) of the Act. He pleaded that, for curing the illegality, th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e departmental representative, on the other hand pleaded that, the Delhi High Court had observed, that, the illegality of the assessment could be challenged in the assessment made consequent to the setting aside of the order of assessment. He contended that, non-following of the prescribed procedure would not make the assessment a nullity, but, it could be cured, by setting it aside. 4. We have given our very careful consideration to the rival submissions. The crux of the issue in the present appeal requires answers to the following questions---(a) whether, the prescribed provision under section 143(2) is mandatory ? and (b) if it is not so followed, whether, it would be an illegal action or is it an irregularity committed ? 5. The In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fter taking into all the relevant material, shall by an order in writing make an assessment of the total income or loss of the assessee and determine the sum payable by him or refundable to him, on the basis of such assessment. The section 143(2) of theact uses the words " shall serve on the assessee a notice ". The reading of the section 143(3) of the Act, indicate that, before making an assessment under this section, he must follow the set route or path of issuing of the notice under section 143(2). Therefore, the issuing of the notice being a pre-condition for the making of the assessment under section 143(3), it has to follow that, the requirement is mandatory or must be followed. The failure to follow the mandatory provision, would nor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ter hearing the assessee and also, considering the relevant material. As observed earlier, the issuing of the notice, being mandatory for the making of the assessment under section 143(3) of the Act, non-issue of such notice, in view of section 292B of the Act, in the circumstances of the case, has only to be treated as an omission or defect or mistake. Therefore, to remedy this mistake or defect or omission, the Assessing Officer has only to be told to follow the mandatory requirement of issuing the notice and to redo the assessment. The purpose of the Income-tax Act being to determine the tax payable by every tax-payer, it prescribes various procedures to be followed by the tax collector and one such procedure is the determination of the ....