TaxTMI 
TaxTMI 
2016 (8) TMI 1088
X X X X Extracts X X X X
X X X X Extracts X X X X
.... merits, on the ground that the Assessing Officer had issued notice u/s. 158BC to the assessee to file the return within 15 days from the date of service of notice? (B) Whether the Appellate Tribunal is right in law and on facts in canceling the assessment order despite the fact that the word `within 15 days' in the notice u/s. 158 BC issued by Assessing Officer is a mere typographical error and even otherwise, the notice and proceedings thereafter is in substance and effect in confirmity with the intent and purpose of the act as has been provided in section 292B of the I.T. Act?" 3. The facts of the case are that search and seizure proceedings were carried out on 11.12.1997 and 12.12.1997 at the residence of the assessee in which certain assets and documents were found and seized. Thereafter, the Assessing Officer issued notice under section 158BC read with section 158BD of the Income-tax Act on 21.12.1998 which was servied on 1.1.1999 requesting the assessee to file the return within 15 days of the service of notice. The assessee filed return of income declaring nil income for the block period 2.11.1986 to 11.12.1997. The Assessing Officer assessed income of the assessee by mak....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by him on the basis of such assessment; (d) the assets seized under section 132 or requisitioned under section 132A shall be dealt with in accordance with the provisions of section 132B." Sec. 292B - No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issue 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 proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act." 4.1 The learned counsel for the revenue has further contended that the notice which is contemplated within fifteen days from the date of service is to be construed keeping in mind the decisions which are rendered by different High Courts . He contended that the notice was issued which the assessee has received and no contention was raised against the same before the Assessing Officer. The assessee filed return of income on 13....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Dove Investments P. Ltd. v. Gujarat Industrial Investment Corporation (2006) 129 Comp. Cas 929 (SC); (2006) 2 SCC 619 the apex court has observed that regard must be had to the context, the subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid down in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get the real intention of the Legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration. In the case of P.T. Rajan v. T.P.M. Sahir (2003) 8 SCC 498, the apex court has said that whether a statute would be directory or mandatory will depend upon the scheme thereof. Ordinarily, a procedural provision would not be mandatory even if the word `shall' is employed therein unless a prejudice is caused. In Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar (2005) 2 SCC 188, the apex court has observed as under (page 212): `74. In this case, it is not necessary for us to go into the question as to whether section 83 is imperative in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice'. 12. Similar views are also expressed by the Supreme Court in State of Punjab v. Shamlal Murari (1976) 1 SCC 719, where it was held as under: `8. We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho' procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product on technicalities.' 18. In view of our findings on the second contention, which are against the appellant-assessee and in favour of the revenue, the third contention loses its rele....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t on the validity of the notice. The facts had revealed that though there were defects in drafting the preamble of the notice, it did not affect its validity as the notice itself clearly informed the assessee that he had to file a return of income for the relevant year." 4. K. Sakthivel v. Assistant Commissioner of Incometax, Central Circle 1, Coimbatore (2012) 26 taxmann. 35 (Madras), particularly, paragraph Nos. 14, 16 and 17 where it is observed as under: "14 - Even though learned counsel appearing for the assessee reiterated the contentions in the grounds as had been taken before the Tribunal and contended that when the issuance of notice under section 158 BD is the very foundation to initiate proceedings against the assessee, the non-mentioning of the block period in the notice would cut at the very root of the assessment proceedings. Learned standing counsel for the revenue placed before us the decision in Shirish Madhukar Dalvi v. Asstt. CIT (2006) 287 ITR 242 / 156 Taxman 79 (Bom.), Smt. Mahesh Kumari Batra v. Jt. CIT (2005) 146 Taxman 67/95 ITD 152 (Asr.) (SB) as well as Sakthivel Bankers case (supra) (255 ITR 144) and submitted that when the assessee had acted on the no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n. Ultimately, when the assessee filed the return under Form No. 2 B, as already noted in the preceding paragraph, the assessee mentioned the block period as ascertained from the Income-tax Officer and said fact is stated by the assessee in the return filed by him. Thus, when the assessee received the notice issued on 5.8.99, the assessee had no doubt as to the nature of proceedings initiated, the purpose of the said proceedings and the block period for which proceedings were initiated. In the circumstances, it is too late for the assessee to contend that non mentioning of the block period would defeat the assessment proceedings. In the circumstances, we reject the assessee's contention." 4.2 Relying on the above decisions, learned counsel for the revenue has contended that the notice issued by the Assessing Officer is a valid notice and there is no lacuna in the notice issued by the Assessing Officer. In that view of the matter, he contended that the order of the Tribunal may be reversed and that of the Commissioner of Income-tax (Appeals) and the Assessing Officer may be restored. 5. Learned counsel appearing for the assessee Mr. Vora has supported the order of the Tribunal and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e benefit under rule 1(v) of the Second Schedule the repayment of the borrowed money must be during a period which is more than seven years." "8. We find support in the view taken by us in the following cases. In Ramanasari v. Muthusami Naik ILR 30 Mad. 248, section 18 of the Madras Rent Recovery Act VIII of 1865 required that, in fixing the day of sale, not less than seven days must be allowed `from the time of the public notice and not less than 30 days from the date of distraint'. The sale was held on the 13th February, but the notice was published on 6th February. It was held that `not less than' means the same as `clear' and seven whole days must elapse between the day of the notice and the day fixed for sale. In Re Railway Sleepers Supply Company LJ 1885 54 Ch 720, the expression `not less' than given number of days means `clear days'. It was held that the expression `not less' indicates a `minimum'." "9. In the present case the whole of the term was payable within the period of seven years and as such, the loan of Rs. 50 lakhs taken by the respondentcomapny from National Grindlays Bank was not qualified for inclusion in the capital base under rule 1(v) of the Second Schedu....