TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 1569
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....ding 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? 2. Whether in the facts and circumstances of the case approach adopted by the revenue for computing the undisclosed income of the block period on the basis of both alleged unaccounted investment and expenses has not led to a double taxation of same income?" 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 other connected matters) decided on 3.11.2016 and another decision of Gujarat High Court in Commissioner of Income Tax vs. Amit K. Jain Alias Anil K. Jain (Tax Appeal No.243/2007) decided on 11.8.2016 holding as under:- "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 ....
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....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 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 ne....
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....g 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 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 agai....
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....ous 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 the assessee, the no 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 Sakt....
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....urn 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 the decision of the Karnataka High Court in the case of Commissioner of Income-tax v. Micro Labs Ltd. reported in (2012) 348 ITR 75 (Karnataka) to submit that calling upon the assessee to file the return of income within a period of 15 days is in violation of mandatory period of time as stipulated under section 158BC of the Income-tax Act. He has contended that the Karna....