TaxTMI 
TaxTMI 
2014 (9) TMI 609
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....documents and cash were seized. Assessee in the course of proceedings admitted undisclosed income of Rs. 29,92,000/- and filed the return declaring the income as under : Asst. Year Total Income including undisclosed income computed u/s.158BB Returned/Assessed as on the date of search Total Income Source Amount Total Income Source Amount 1987-88 25510 25510 1988-89 25000 25000 1989-90 35606 35606 1990-91 26039 26039 1991-92 43500 43500 1992-93 43182 43182 1993-94 286620 86620 1994-95 579450 79450 1995-96 600000 ROI not filed 1996-97 6000000 ROI not filed 1.4.96 to 13.11.19 96 1106970 14970 Total 33,71,877 &nb....
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....all matters were restored to the file of A.O. the same issue also raised before the A.O. in the assessment and A.O. even though discussed the same in page 7 of the order rejected the same as the assessee has availed sufficient time subsequently. 6. The Ld. AR of the assessee submitted that the AO issued notice u/s.158BC on 27-08-97 directing the assessee to file the return for block period within 15 days whereas the requirement u/s.158BC is the notice requiring the assessee to furnish the block return within such time not being less than 15 days but not more than 45 days. Thus, the Ld. AR of the assessee has submitted that the notice issued u/s.158BC is invalid as the AO has not given the minimum period of time for filing the return of income. Consequently, the AO has no jurisdiction to proceed with the assessment proceedings u/s.158BC. In support of his contention, he has referred the Circular No.717 dated 14.08.1995 and submitted that the CBDT has made it clear that the AO shall serve a notice on such person requiring him to furnish a return within such period not less than 15 days. The Ld. AR further contended that the notice u/s.158BC is foundation for initiating the proceed....
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....When the AO has complied with all the procedural requirements while completing the assessment then no injury has been caused to the assessee with respect to the notice in question and consequently there is no defect in the proceedings initiated on the basis of the said notice. He further submitted that even if there is a defect in the notice the same is curable defect which has been cured when the return of income filed by the assessee beyond the period of limitation was processed by the AO. The Ld. AR relied upon the decision of Hon'ble Bombay High Court in the case of Shirish Madhukar Dalvi vs. ACIT 287 ITR 242 and submitted that the Hon'ble High Court has held that the A.O. did not give 15 days clear notice, however, it did not cause any prejudice to the assessee as the assessee was served with another notice. The Ld. DR has further submitted assessee duly participated in the assessment proceedings, then as per the provisions of sec.292B the assessee is not permitted to raise such objection subsequently. He has further submitted that the time period mentioned within 15 days means and includes 15th day. He has also relied upon the decision of Special Bench of this Tribunal in cas....
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....d not "within 15 days". Therefore, there is a clear difference between the time period allowed for furnishing the return within 15 days and not less than 15 days, which means more than 15 days with a rider of 45 days. The term not less than 15 days has been clarified by the CBDT in Circular No.717 in Para 39.3(e) as under: "(e) Procedure for making block assessment: The Assessing Officer shall serve a notice on such person requiring him to furnish within such time, not being less than 15 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 subsection (1) of section 142 setting forth his total income including undisclosed income for the block period. The officer shall proceed to determine the undisclosed income of the block period and provisions of section 142, sub-sections (2) and (3) of section 143 and section 144 shall apply accordingly. The Assessing Officer shall not be required to issue any notice under section 148 for the purpose of proceedings under this chapter. Though the block period can be extended upto 10 years in the case where the assessee has not disclosed undisc....
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....be filed voluntarily. It is only when a notice under Section 158BC would be issued by the revenue. However, as and when validity issued, it is only then that a return could be filed. When any search has been conducted under Section 132 or books of account, other document or assets are requisitioned under Section 132A, it is only then, the Assessing Officer shall proceed to assess the undisclosed income. Therefore, Section 158 BA provides for jurisdiction to the Assessing Officer to assess the undisclosed income in accordance with Chapter XIV-B. Section 158 BA(2) is a charging section, 158BB provides for computation of undisclosed income for the block period and 158 BC provides for procedure for block assessment. Therefore, a notice under Section 158 BC provides for a procedure to be adopted for block assessment. Under this procedure envisaged, the Assessing Officer shall serve a notice requiring the assessee to furnish his return within such time not being less than 15 days but not more than 45 days as specified in the notice. Therefore, the time to be granted to the assessee in terms of Section 158 BC is a minimum of 15 days and a maximum of 45 days. If the said period of time is ....
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....essment order dt. 30th June, 2000. 48. It is not in dispute that notice dt. 6th July, 1998 did not cause any prejudice to the appellant. During the course of hearing, we specifically asked Mr. Sathe as to what prejudice was suffered by the appellant on account of alleged defective notice dt. 6th July, 1998. He made a positive statement - no specific prejudice was suffered by the appellant. At any rate, the notice dt. 6th July, 1998 suffered from only technical defects, if any, and, in our opinion, it was protected under the umbrella of s. 292B of the Act." 11. It is clear from the facts of the said case that when the subsequent notice was issued then the alleged defective notice did not cause any prejudice to the assessee. Therefore, the said decision is not applicable in the facts of the present case where the only notice issued u/s.158BC was contrary to the provisions of sec.158BC. 12. As regards the Special Bench decision in case of Navin Verma vs. ACIT 100 ITD 73, the said decision has been considered by the Hon'ble Punjab & Haryana High Court in the case of Niranjan Lal Verma (supra) wherein the Counsel for the as....
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....on the issue that taxes paid should be refunded in case the assessment is held invalid. This additional ground even though stated to be legal ground, could not be admitted by us as it involves examination of facts. As seen from the assessment order assessee himself has declared incomes in the block assessment. whether assessee has paid taxes or not require examination as nothing is available on record nor assessee placed any submissions in this regard whether taxes have been paid by him or collected by the Revenue. Be that as it may, the Hon'ble Supreme Court in the case of CIT vs Shelly Products and another 261 ITR 367 held that admitted tax should not be refunded. It was held that - "Failure or inability to frame another assessment after the earlier assessment is set aside or nullified in appropriate proceedings does not entitle the assessee to claim refund of advance tax and tax paid on self-assessment, because to that extent the assessee has admitted his liability to pay tax in accordance with the law. If the assessing authority, on an earlier assessment made being set aside or nullified in appropriate proceedings, cannot make a fre....