TaxTMI 
TaxTMI 
2010 (4) TMI 733
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....ich cures only the defect or omission in the notice issued or purported to have been issued which in substance and effect is in conformity with or according to the intent and purpose of this Act ; but does not cure the non-service of notice, in view of the fact that the (i) defect or omission in the notice, and (ii) non-service of notice which refers to the act of omission but not to any defect, are entirely two different factors and cannot be combined as defect of non-service of notice ?" "Income-tax Appeal No. 126 of 2009 (i) Whether on the facts and in the circumstances of the case, the decision of the learned Tribunal is not erroneous in holding that the application of the provisions of section 143(2) would not be applicable to the block assessment procedure and the matter would necessarily travel back to the file of the Assessing Officer for the purpose of cur-ing the defect of non-service of notice under section 143(2) whereas the assessment deserves to be quashed ? (ii) Whether such restoration is valid in terms of section 292B of the Act which cures only the defect or omission in the notice issued or purported to have been issued which in substanc....
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....matter, thus, would necessarily travel back to the file of the Assessing Officer, for the purpose of curing the defect of non-service of the notice(s) under section 143(2), so that the assessment stands framed in compliance with the mandate of the procedure as statutorily defined. Before parting, however, it may be clarified that the restoration back to the file of the Assessing Officer is only for the reason of the categorical admission by the senior departmental representative. Made with reference to the assessment record(s), of there being no issue of notice(s) under section 143(2) in the present case, as, if as it appears from the asses-see's ground, if the same stand already served, albeit beyond the time limit as prescribed vide the proviso to the provision, there would be no purpose for remission thus, with we having confirmed the non-applicability of the said proviso to the block period assess-ment, as in the instant case(s), and restoring back the assessment back to the file of the Assessing Officer, only for that purpose. We decide accordingly." 6. Learned counsel for the appellant submitted that issue of notice under section 143(2) for the purposes of making th....
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.... shall be served on the assessee on or after the 1st day of June, 2003 ; (ii) notwithstanding anything contained in clause (i), if he con-siders it necessary or expedient to ensure that the assessee has not under-stated the income or has not computed excessive loss or has not under-paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return : Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished." 9. We have considered the rival submissions of learned counsel for the parties and the materials on record. We are of the opinion that the issue involved is no more res integra and is covered by the decision of the apex court in the case of Asst. CIT v. Hotel Blue Moon [2010] 321 ITR 362. On the consideration of the scheme of the Act and the relevant provision, the Gauhati High Court in the case of Smt. Bandana Gogoi [2007] 289 ITR 28 has held as follows (page....
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.... 142, sub-sections (2) and (3) of section 143, section 144 and section 145 shall, so far as may be, apply.' An analysis of this sub-section indicates that, after the return is filed, this clause enables the Assessing Officer to complete the assessment by following the procedure like issue of notice under section 143(2)/142 and complete the assessment under section 143(3). This section does not provide for accepting the return as provided under section 143(1)(a). The Assessing Officer has to complete the assessment under section 143(3) only. In case of default in not filing the return or not complying with the notice under section 143(2)/142, the Assess-ing Officer is authorized to complete the assessment ex parte under section 144. Clause (b) of section 158BC by referring to section 143(2) and (3) would appear to imply that the provisions of section 143(1) are excluded. But section 143(2) itself becomes necessary only where it becomes necessary to check the return, so that 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 un....
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.... section 142, sub-sections (2) and (3) of section 143 strictly for the of block assessments. We do not agree with the submissions of the learned counsel for the Revenue, since we do not see any reason to restrict the scope and meaning of the expression `so far as may be apply'. In our view, where the Assessing Officer in repudiation of the return filed under section 158BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of section 142, sub-sections (2) and (3) of section 143 . . . On a consideration of the provisions of Chapter XIV-B of the Act, we are in agreement with the reasoning and the conclusion reached by the High Court." (emphasis provided). 12. From the aforesaid decision it emerges that the service of notice on the assessee under section 143(2) within the prescribed period of time is a pre-requisite for framing the block assessment under Chapter XIV-B of the Act. It is mandatory. Non-issuance of notice is not a mere procedural irregu-larity and the same is not curable. For the purpose of Chapter XIV-B of the Act, for the determination of undisclosed income for a block period under the provisions of section 158BC the provisio....