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TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 1385
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....ss than 15 days" which implies clear 15 days and hence whether the assessment framed on the basis of such illegal and invalid notice is not bad in law?" 3. Following questions were framed in appeal No. 172/2003:- "Whether the notice issued u/s 158BC of the Income Tax Act of 1961 by the assessing officer in the present case to file the return 'within 15 days' does not violate the provision of section 158BC which requires to issue a notice providing time of "not being less than 15 days" which implies clear 15 days and hence whether the assessment framed on the basis of such illegal and invalid notice is not bad in law?" ii) Whether the compliance to an illegal notice can validate the proceedings and whether there can be an estoppel against statutory provisions?" 4. Same questions were framed in appeal No. 15/2004, 26/2004 & 50/2004. 5. Counsel for the appellant contended that the issue is squarely covered by the decision of the Gujarat High Court in case of Commissioner of Income Tax vs. Amit K. Jain @ Anil K. Jain, Tax Appeal No. 243/2007, decided on 11/8/2016 wherein the Gujarat High Court relying upon decision of the Supreme Court reproduced on paragraph 4.1,5.1 & 6....
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....o 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. Cas929 (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 th....
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....ies 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 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 noncompliance, tho' procedural, will thwart fair hearing or prejudice doing of jus....
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....002, 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 Income-tax, 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 t....
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....essment. 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 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." 5.1 He has further relied on t....