2004 (3) TMI 51

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....posed under section 271B, on the ground that the show cause notice served on the assessee was invalid? 2. Whether, on the facts and in the circumstances of the case, the learned Tribunal was justified in law in holding the view that the deficiencies in the show cause notice are not curable by the provisions of section 292B of the Income-tax Act, 1961, and thereby holding the order of penalty invalid?" The facts giving rise to the aforesaid two questions are that for the assessment year 1985-86, the Assessing Officer formed his opinion which is reflected in his order of assessment that tax audit report under the provisions of section 44AB have not been filed within the prescribed time and directed that penalty proceedings under section 27....

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....g Officer allowed the assessee's appeal and set aside the order of penalty. Mr. Prabir Bhowmick, learned counsel for the Revenue, contended that there is an admitted default on the part of the assessee in complying with the requirements mentioned under section 44AB and, therefore, section 271B is clearly attracted. The procedure for imposing penalty is prescribed under section 274 whereby hearing has to be afforded to the petitioner and the same has been complied with. Defect in the show cause notice as alleged by the assessee being a mere irregularity, the same is curable under section 292B and, therefore, the show cause notice could not have been invalidated. No such objection has been raised before the Assessing Officer nor was the sa....

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....ase [1966] 62 ITR 109 and is directly on the issue arising in the case herein dealing with the question of the validity of a show cause notice issued under section 271(1)(a) which was unsigned. It was further submitted that the Madhya Pradesh High Court has dealt with the question with respect to the provisions of section 292B having been introduced after the decision in B.K. Gooyee's case [1966] 62 ITR 109 (Cal) and held that the signing of a notice under section 271(1)(a) of the Act is not merely an inconsequential technicality. It was held as under: "It is a requirement of the provisions of Order 5, rule 1(3) of the Civil Procedure Code, which are applicable by virtue of section 282 of the Act. Under the circumstances, the provisions ....

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....gs and that all proceedings taken in pursuance of a notice which does not contain the signature of the Income-tax Officer are invalid. It was further held that such irregularity cannot be waived and the question of its validity can be taken at any stage of the proceedings. Their Lordships of the Madhya Pradesh High Court have taken notice of the provisions contained in section 292B which provision was incorporated subsequent to the judgment in B.K. Gooyee's case [1966] 62 ITR 109 (Cal) and have specifically dealt with this question in the light of the provisions in section 292B. We are in respectful agreement with the view of their Lordships in Umashankar Mishra's case [1982] 136 ITR 330 (MP) based on which the Tribunal in the case on hand ....