AI Drafter 
TaxTMI 
TaxTMI 
2017 (3) TMI 391
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by the Assessing Officer was within 15 days for filing of the return from the service of the notice and not allowed minimum 15 days time as required by the law? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in sustaining an addition of Rs. 55915/- made by the Assessing Officer on account of unexplained cash found during the course of search to the income of the appellant in the block assessment, irrespective of the fact that the appellant has already disclosed undisclosed debtors of Rs. 625000/- and cash found is out of realization from the debtors?" 3. Counsel for the appellant has contended that the issues are squarely covered by the decision of this Court in the case of Brahmadev Kumawat vs. CIT, Ajmer in DB Income Tax Appeal No.183/2004 decided on 08.12.2016, wherein relying upon the earlier decision in the case of Venad Properties Private Limited vs. Commissioner of Income Tax (2012) 340 ITR 463 (Delhi), has observed as under: "4. Counsel for the appellant submitted that the issue is squarely covered in favour of the assessee in the case of Surya Dev Kumawat vs. CIT (D.B. Income Tax Appeal No.30/2006 and othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....olation has to be examined from the standpoint of substantial compliance. The order passed in violation of such provision can be set aside only where such violation has occasioned prejudice to the subject. It further went on to observe that even a mandatory requirement can be waived by the person concerned, if such mandatory provision of law is conceived in his interest and not in the public interest. The conduct of the subject must be borne in mind while examining a complaint of non-observance of procedural rules governing such enquiries. As a rule, all such procedural rules are designed to afford a full and proper opportunity to the subject to defend himself. In the case of 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 cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....kash Singh (1996) 219 ITR 737 went on to hold that non-service of notice under section 143(2) of the Incometax Act, 1961 to 9 out of 10 representatives of the deceased did not invalidate the order of the Assessing Officer relating to the assessment year in question. "2. Venad Properties Private Limited v. Commissioner of Income-tax (2012) 340 ITR 463 (Delhi), particularly, paragraph Nos. 11, 12 and 18 which are reproduced as under: "11. In Sardar Amarjit Singh Kalra v. Smt. Pramod Gupta (2003) 3 SCC 272, a Constitution Bench of the Supreme Court has held: `26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on the merits of 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 tyra....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The question whether the notice was addressed to the correct person has been examined and dealt with by us above. Service of notice is not the jurisdictional precondition but a matter pertaining to making of the order of assessment. Before an assessment order is passed, the notice must beserved. As noticed above, on February 21, 2002, Vijay Narain Seth, director of the respondent company appeared before the Assessing Officer. The respondent had also filed some details before the Assessing Officer who passed the assessment order." "45. We may note, the observations of the Supreme Court in Balchand v. ITO (1969) 72 ITR 197 (SC) wherein it was held that in construing a statutory notice, extraneous evidence may be looked into to find out whether the technical defects or lacuna had any effect 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 (Mad....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... per se would not defeat the aspect of the persons against whom the notice issued were fully aware of the purpose of issuing notice." "17. In the light of the above said decision of this court as well as in view of the Bombay High Court cited supra, we reject the contention of the assessee that the non mentioning of the block period would defeat the very assessment. Quite apart from this, the assessee participated in the inquiry conducted under section 131 of the Income- tax Act and had also made a statement confirming the purchase of the land. Subsequent thereto, the assessee had participated in the enquiry and on 15.5.2002, in response to the notice under section 142(1) the assessee expressed his inability to file the return on or before 15.5.2002 on account of liquidity problem, hence he sought for time to file return. 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 dou....