TaxTMI 
TaxTMI 
2010 (4) TMI 856
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....f Rs. 40,79,353 in relation to the relief under section 80HHC of the Act. Subsequently, notice under section 143(2) of the Act came to be issued on November 29, 1996. It appears that the said notice did not bear the signature of the Assessing Officer having jurisdiction over the case of the assessee, although it bore his rubber stamp. The said notice was served upon the assessee on December 2, 1996. 4. Pursuant to the said notice, the assessee appeared before the Assessing Officer and, vide order dated February 26, 1998, assessment came to be framed under section 143(3) of the Act at a total income of Rs. 1,64,81,302. It appears that the assessee moved an application under section 154 of the Act seeking deletion of income of Rs. 1,56,77,325. The said application came to be decided, vide order dated June 23, 1998, whereby the Assessing Officer reduced a sum of Rs. 48,66,867 and made an addition of Rs.10,57,708 on account of bogus purchases. 5. The assessee carried both the orders made by way of separate appeals before the Commissioner (Appeals). The validity of the assessment framed by the Assessing Officer under section 143(3) was challenged mainly on two counts, vi....
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....ued on November 29, 1996, and served upon the assessee on December 2, 1996, that is, after a period of twelve months from the end of the month in which the return was furnished. 10. In the impugned order, the Tribunal has recorded a finding of fact that the notice under section 143(2) of the Act was served on the assessee on December 2, 1996. According to the Tribunal, as per the proviso to section 143(2), no notice under section 143(2) can be served on the assessee after the expiry of 12 months from the end of the month in which the return is furnished. That from the language used in the proviso, it is clear that the jurisdiction to frame the assessment under section 143(3) pursuant to notice under section 143(2) can be assumed only if the notice is served on the assessee within 12 months of the month in which the return was filed. The Tribunal held that it is clear that the notice under section 143(2) which is the foundation for assuming jurisdiction to make an assessment in the case of an assessee under section 143(3), had been assumed by the Assess- ing Officer on the basis of a notice which though issued on November 29, 1996, fixing the date of hearing on December 19, ....
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....herefore, the language of the main provision requires the Assessing Officer to prima facie arrive at satisfaction of existence of any one of the three conditions. The proviso under the said sub-section states : provided that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished. On a plain reading of the language in which the proviso is couched it is apparent that the limitation prescribed therein is mandatory, the format of provision being in negative terms. The position in law is well settled that if the require- ments of a statute which prescribes the manner in which something is to be done are expressed in the negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, such requirements are, in all cases absolute and neglect to attend to such requirement will invalidate the whole proceeding. When the provision was first introduced in the statute the Central Board of Direct Taxes issued Departmental Circular No. 549, dated October 31, 1989 (see [1990] 182 ITR (St.) 1), and the necessity of the proviso as well ....
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....lain reading of the sec- tion and the proviso it is more than abundantly clear that the proviso prescribes a mandatory period of limitation in the light of the scheme of assessment wherein majority of returns are required to be accepted without scrutiny and only certain returns are taken up for scrutiny." 12. Thus, the controversy in issue in the present case stands concluded by the abovecited decision and all the contentions raised by the appellant- Revenue stand answered against the Revenue and in favour of the asses- see. The said view also finds support in the decision of the Supreme Court in Asst. CIT v. Hotel Blue Moon [2010] 321 ITR 362 (SC) wherein the court held that if an assessment is to be completed under section 143(3) read with section 158BC, notice under section 143(2) should be issued within one year from the date of filing of the block return. Omission on the part of the assessing authority in issuing notice under section 143(2) cannot be a procedural irregularity and is not curable and, therefore, the requirement of notice under section 143(2) cannot be dispensed with. 13. The decision of this court in Madanlal Mathurdas v. Chunilal, ITO [1962] 44 ....