TaxTMI 
TaxTMI 
2005 (10) TMI 204
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....appeal No. 6 in view of ITAT Special Bench decision in 95 TTJ (Delhi) 25 (sic). We, therefore, reject the assessee's ground of appeal No. 6 as withdrawn. 4. We shall refer to assessee's ground of appeal Nos. 2, 3 and 4, which are based on technical points a little later. On merits, the only ground taken by the assessee in this appeal is ground of appeal No. 5, whereby the assessee has disputed the addition of following amounts as undisclosed income of the assessee for the block period: ----------------------------------- Assessment year Amount ----------------------------------- 1994-95 Rs. 35,000 1995-96 Rs. 42,000 1996-97 Rs. 1,36,840 1997-98 Rs. 60,530 1998-99 Rs. 8,411 &n....
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....Assessing Officer, therefore, held that this income was undisclosed income of the assessee and included the same in the assessment of the undisclosed income for the block period. Besides, the assessee disclosed certain cash loans during the financial year 1995-96. During the course of block assessment proceedings, the assessee surrendered four loans of Rs. 19,000 each for the assessment as the assessee's undisclosed income. The Id. Assessing Officer treated the sum of Rs. 76,000 also as representing assessee's undisclosed income under section 158BC for the assessment year 1996-97. Besides, the ld. Assessing Officer disallowed certain amounts from out of depreciation, vehicle expenditure and interest paid, claimed by the assessee. The amount thus disallowed was also treated as undisclosed income of the block period. 7. During the course of hearing before us, the ld. Authorised Representative of the assessee argued that insofar as the amounts disputed by the assessee's ground of appeal No. 5 are concerned, the same are required to be deleted, as they do not pertain to block assessment proceedings at all. He argued that it was settled position that only income detected during the c....
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....ame view has been taken by the Hon'ble Allahabad High Court in the case of CIT v. Smt. Usha Tripathi [2001] 249 ITR 4. There are a large number of judgments supporting this view and reference may be made to CIT v. Shambhulal C. Bachkaniwala [2000] 245 ITR 488 (Guj.); CIT v. Vinod Danchand Ghodawat [2001] 247 ITR 448 (Bom.); CIT v. Rajendra Prasad Gupta [2001] 248 ITR 350 (Raj.); Bhagwati Prasad Kedia v. CIT [2001] 248 ITR 562 (Cal); CIT v. Ravi Kant Jain [2001] 250 ITR 141 (Delhi); CIT v. Dr. M.K.E. Memon [2001] 248 ITR 310 (Bom.) and so on. Examined from this point of view, we find that it is not the case of the Id. Assessing Officer and/or CIT(A) that the income returned by the assessee in belated returns had already been unearthed or detected during the course of requisition under section 132A. Even the amount of cash credits surrendered by the assessee, particularly of four loans were found not as a result of search but as a result of subsequent enquiries made by the Assessing Officer after the search. We are, therefore, satisfied that the amounts mentioned in ground No. 5 are required to be excluded from the block assessment proceedings for the short reason that they do not be....
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....r section 158BC/143(2), the ld. counsel for the assessee replied that during the course of block assessment proceedings, the assessee had been given sufficient opportunity to present its case and the block assessment order had been made in relation to the correct period and in the correct status. The assessee, therefore, did not have any grievance on this score in respect of the order under section 158BC as made by the ld. Assessing Officer on 29-4-1998. However, these were technical issues of substance and therefore, the assessee's prayer was that the order under section 158BC as made by the Assessing Officer may be annulled as being ab initiovoid. The ld. counsel of the assessee categorically submitted that if we find these defects pointed out by him to be curable defects, the same may be treated to have already been cured in the order under section 158BC made by the Assessing Officer and the assessee was not interested in having the fresh order under section 158BC, being made in this case. 11. The ld. DR argued that in this case, the assessee had been raising technical objections all the way. First the assessee challenged legality of requisition under section 132A before the ....
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....ottamdas v. CIT [1941] 9 ITR 130 (All.), the mistake in the notice of not scoring out any of four capacities printed therein was held to be not material because the assessee had been assessed in the previous years as undivided Hindu family and had submitted the return as undivided Hindu family. Hence, the arguments of the assessee that he did not know exactly as to which capacity of his was under investigation and, therefore, the notice was illegal, was not maintainable. 13. In our considered view, in all such matters, the provisions of section 292B have to be kept in mind and properly applied wherever necessary. The provisions of section 292B are as under: "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 issued 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 accordin....
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....atutory notice, proceedings or order. In first category of cases, the error can be ignored if the same have been waived. Ordinarily where a party ignores the error and responds as if there is no error, waiver can be assumed to have taken place. Only in matters relating to substantive law that goes to the root of the matter it can be held that there is a nullity that cannot be validated by waiver. Second situation may be where although there is no waiver; the defect or irregularity is curable and not fatal. This aspect has not been considered at all, we say so with respect, in t he decision in the case of Vinod Kumar. 16. In the case of (Estate of Late) Rangala Jajodia v. CIT [1971] 79 ITR 505, Hon'ble Supreme Court has held that even the absence of notice may be curable. Facts of that case are that Rangalal Jajodia filed income-lax returns for the years 1942-43 and 1943-44 but before the assessments could be made, Rangalal Jajodia died. Rangalal Jajodia was survived by Shankarlal Jajodia, son by a predeceased wife, Aruna Devi, the second wife, and children by the second wife. Rangalal Jajodia had made a will on 16-4-1945, whereby Aruna Devi and one Ram Kumar Bhuwaika were execut....
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....ly, if there is a mistake as to name or there is a misdescription of the name, the proceeding will be liable to be challenged and corrected by giving notice to the assessee subject to such just exceptions as an assessee can take under law. The direction given by the Appellate Assistant Commissioner was to make fresh assessment on Aruna Devi in accordance with the provisions of the Act". 17. In the instant case, apart from innocuous mistakes no prejudice has been caused to the assessee. The assessee has, therefore, rightly argued before us that in the event, the impugned orders not being found to be void ab initio, no further curative steps may be taken. Had there been prejudice caused to the assessee in any manner, the law laid down by the Hon'ble Supreme Court in the case of Estate of Late Rangalal Jajodia is quite clear that an assessment proceeding cannot cease to be a proceeding under the Act merely by reason of want of notice.- It will be proceeding liable to be challenged and corrected. However, on the facts of the case before us there being no prejudice, the impugned order under section 158BC can be treated as having been made in lawful manner within the meaning of sectio....