{"id":106856,"date":"2010-04-13T00:00:00","date_gmt":"2010-04-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dy-vs-appearance-on-13-april-2010"},"modified":"2017-02-13T01:00:14","modified_gmt":"2017-02-12T19:30:14","slug":"dy-vs-appearance-on-13-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dy-vs-appearance-on-13-april-2010","title":{"rendered":"Dy vs Appearance : on 13 April, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Dy vs Appearance : on 13 April, 2010<\/div>\n
Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nTAXAP\/386\/1999\t 11\/ 11\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nTAX\nAPPEAL No. 386 of 1999\n \n\nwith\n \n\nTAX\nAPPEAL NO.387 of 1999\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE D.A.MEHTA  \nHONOURABLE\nMS.JUSTICE H.N.DEVANI\n \n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================\n\n\n \n\nDY.\nC.I.T. - Appellant(s)\n \n\nVersus\n \n\nMAXIMA\nSYSTEMS LIMITED - Opponent(s)\n \n\n=========================================\n \nAppearance : \nMRS\nMAUNA M BHATT for\nAppellant \nMR SN SOPARKAR for\nRespondent \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE D.A.MEHTA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS.JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 13\/04\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MS.JUSTICE H.N.DEVANI)<\/p>\n
Both
\n\tthese appeals arise out of common order dated 5th May
\n\t1999 made by the Income Tax Appellate Tribunal (the Tribunal) and
\n\tthe parties are also common.  Hence, the same were taken up for
\n\thearing and are disposed of by this common order.\n<\/p>\n
While
\n\tadmitting these appeals under section 260A of the Income Tax Act,
\n\t1961 (the Act) on 7th August 2000, following substantial
\n\tquestion of law had been formulated in both the appeals :\n<\/p>\n
 Was
\n\tthe unsigned notice under section 143(2) of the Act deemed to have
\n\tbeen served on the assessee because it was posted within the
\n\tprescribed period, though received by the assessee thereafter?\n<\/p>\n
The
\n\tassessment year is 1995-96. The respondent had filed return of
\n\tincome declaring nil income on 29th November 1995 which
\n\twas processed under section 143(1)(a) of the Act on 27.11.1996 by
\n\tmaking prima facie adjustments of Rs.40,79,353\/- in relation to
\n\trelief under section 80-HHC of the Act. Subsequently, notice under
\n\tsection 143(2) of the Act came to be issued on 29th
\n\tNovember 1996. It appears that the said notice did not bear the
\n\tsignature of the Assessing Officer having jurisdiction over the case
\n\tof the assessee, although it bore his rubber stamp. The said notice
\n\twas served upon the assessee on 2nd December 1996.\n<\/p>\n
Pursuant
\n\tto the said notice, the assessee appeared before the Assessing
\n\tOfficer and vide order dated 26.2.1998, assessment came to be framed
\n\tunder section 143(3) of the Act at a total income of
\n\tRs.1,64,81,302\/-. It appears that the assessee moved an application
\n\tunder section 154 of the Act seeking deletion of income of
\n\tRs.1,56,77,325\/-. The said application came to be decided vide order
\n\tdated 23.06.1998 whereby the Assessing Officer reduced a sum of
\n\tRs.48,66,867\/- and made an addition of Rs.10,57,708\/- on account of
\n\tbogus purchases.\n<\/p>\n
The
\n\tassessee carried both the orders made by way of separate appeals
\n\tbefore Commissioner (Appeals). The validity of the assessment framed
\n\tby the Assessing Officer under section 143(3) was challenged mainly
\n\ton two counts viz., (1) the notice issued under section 143(2)
\n\thaving not been signed by the Assessing Officer, and (2) the notice
\n\tbeing served on the assessee after the period prescribed under
\n\tsection 143(2) of the Act. The Commissioner (Appeals) partly allowed
\n\tthe appeals. However, both the aforesaid grounds raised by the
\n\tassessee came to be rejected. The assessee carried the matter in
\n\tsecond appeal before the Tribunal and succeeded.\n<\/p>\n
Mrs.\n<\/p>\n
\tM .M. Bhatt, learned Senior Standing Counsel for the
\n\tappellant-revenue submitted that in view of the decision in Madanlal
\n\tMathurdas v. Chunilal, Income Tax Officer,<\/a> [1962] , 44 ITR
\n\t325, since the notice had been issued within the prescribed period
\n\tof limitation, the Tribunal ought to have held that the service is
\n\tvalid. It is submitted that the Tribunal had failed to appreciate
\n\tthat pursuant to the notice under section 143(2) of the Act, the
\n\tassessee had put in appearance and had not taken any objection as
\n\tregards the notice not having been signed by the Assessing Officer;
\n\tor that the notice had been served after the period of limitation
\n\tprescribed under section 143(2) of the Act.  It is submitted that in
\n\tthe circumstances, the respondent assessee is deemed to have waived
\n\this right to object to the delay in effecting service.\n<\/p>\n
The
\n\tlearned counsel has also submitted that the Tribunal has held that
\n\tthe notice under section 142(2) was invalid as the same had not been
\n\tsigned by the Assessing Officer and that as such, the question as to
\n\twhether the Tribunal was justified in holding that the unsigned
\n\tnotice was not a valid notice, does arise from the impugned order of
\n\tthe Tribunal.\n<\/p>\n
Mrs.\n<\/p>\n
\tSwati Soparkar, learned advocate for the respondent-assessee has
\n\tsubmitted that the issue involved in the present case is no longer
\n\tres integra inasmuch as the same stands decided in favour of
\n\tthe assessee by a decision of this Court in Deputy
\n\tCommissioner of Income Tax v. Mahi Valley Hotels and Resorts,<\/a>
\n\t[2006] 287 ITR 360 (Guj) as well as a decision of the Supreme Court
\n\tin Assistant Commissioner of Income Tax and another v. Hotel
\n\tBlue Moon, [2010] 321 ITR 362 (SC).  It is submitted that in
\n\tthe circumstances, the question is required to be answered in favour
\n\tof the assessee.\n<\/p>\n
The
\n\tfacts are not in dispute. Admittedly, the return of income was filed
\n\tby the assessee on 29th November 1995 and was processed
\n\tunder section 143(1)(a) of the Act on 27th November 1996.
\n\tThe notice under section 143(2) was issued on 29th
\n\tNovember 1996 and served upon the assessee on 2nd
\n\tDecember 1996, that is, after a period of twelve months from the end
\n\tof the month in which the return was furnished.\n<\/p>\n
In
\n\tthe impugned order, the Tribunal has recorded a finding of fact that
\n\tthe notice under section 143(2) of the Act was served on the
\n\tassessee on 2.12.1996.  According to the Tribunal, as per the
\n\tproviso to section 143(2), no notice under section 143(2) can be
\n\tserved on the assessee after the expiry of 12 months from the end of
\n\tthe month in which the return is furnished.  That from the language
\n\tused in the proviso, it is clear that the jurisdiction to frame the
\n\tassessment under section 143(3) pursuant to notice under section
\n\t143(2) can be assumed only if the notice is served on the assessee
\n\twithin 12 months of the month in which the return was filed. The
\n\tTribunal  held that it is clear that the notice under section 143(2)
\n\twhich is the foundation for assuming jurisdiction to make an
\n\tassessment in the case of an assessee under section 143(3), had been
\n\tassumed by the Assessing Officer on the basis of a notice which
\n\tthough issued on 29.11.1996 fixing the date of hearing on
\n\t19.12.1996, was in fact sent by Registered Post A.D. and was served
\n\ton the assessee on 2.12.1996, which was not permissible in law.  The
\n\tTribunal, accordingly, held that the assessment framed by the
\n\tAssessing Officer under section 143(3) of the Act pursuant to the
\n\tnotice under section 143(2)  which was served beyond the period of
\n\tlimitation prescribed by the proviso to section 143(2) of the Act
\n\twas not a valid assessment and quashed the same.\n<\/p>\n
In
\n\tDeputy Commissioner of Income Tax v. Mahi Valley Hotels and
\n\tResorts<\/a> (supra), this Court was considering as to whether an
\n\tassessment framed under section 143(3) of the Act by issuing
\n\tstatutory notice beyond the prescribed time limit is bad in law,
\n\twherein it was held thus:\n<\/p>\n
 [4]\tThe
\n\tsecond contention regarding there being acquiescence and\/or waiver
\n\ton part of the assessee by participating in the proceedings also
\n\tdoes not merit acceptance. It is an admitted position that the
\n\treturn of income was filed on 30\/03\/1997 for Assessment Year 1997-98
\n\tand the notice under section 143(2) of the Act came to be issued for
\n\tthe first time only on 20\/08\/1998. Therefore, the notice was
\n\tadmittedly beyond the period of 12 months which is the statutory
\n\tperiod of limitation prescribed under the Proviso to sub-section (2)
\n\tof Section  143 of the Act.\n<\/p>\n
[5]\tThe
\n\tScheme of the Act broadly permits the assessment in three formats;\n<\/p>\n
\t(i) acceptance of the returned income; (ii) acceptance of returned
\n\tincome subject to permissible adjustments u\/s.143(1) of the Act
\n\tby issuance of intimation; and (iii) scrutiny assessment under
\n\tsection 143(3) of the Act.  This Scheme was originally introduced by
\n\tDirect Tax Laws (Amendment) Act, 1989 with effect from
\n\t1.4.1989. The issuance of notice under section 143(2) of the Act is
\n\tin the course of assessment in the third mode, namely, scrutiny
\n\tassessment.\n<\/p>\n
[6]\tSection
\n\t 143(2) of the Act requires that where return has been  made by an
\n\tassessee, if the Assessing Officer considers it necessary or
\n\texpedient  to ensure that the assessee  has not understated  the
\n\tincome,  or has not  computed  excessive loss,  or has not
\n\tunder-paid  tax in any manner, he shall serve on the assessee a
\n\tnotice requiring him either to attend his office, or to produce,  or
\n\tcause to be produced there, any evidence  on which the assessee may
\n\trely  in support of the return. Therefore, the language of the main
\n\tprovision requires Assessing Officer to prima facie arrive at
\n\tsatisfaction of existence of any one of the three conditions.
\n\tProviso under the said sub-section states:  provided that no
\n\tnotice under this sub-section shall be served on the assessee after
\n\tthe expiry of twelve months from the end of the month in which the
\n\treturn is furnished . On a plain reading of the language in which
\n\tthe proviso is couched it is apparent that the limitation prescribed
\n\ttherein is mandatory, the format of provision being in negative
\n\tterms. The position in law is well settled  that if the requirements
\n\tof a statute  which prescribes the manner in which something is to
\n\tbe done  are expressed in negative language, that is to say, if the
\n\tstatute enacts that it shall be done in such a manner and in no
\n\tother manner, such requirements are, in  all cases absolute and
\n\tneglect to attend to such requirement  will invalidate  the whole
\n\tproceeding.\n<\/p>\n
[7]\tWhen
\n\tthe provision was first introduced in the statute the Central Board
\n\tof Direct Taxes issued departmental Circular No. 549 dated
\n\t31\/10\/1989 and the necessity of the proviso  as well as the
\n\tconsequences  flowing on  failure to issue notice within the
\n\tlimitation  have been explained in the following words :\n<\/p>\n
 5.13
\n\tA proviso to sub-section (2) provides that a notice under the
\n\tsub-section can be served on the assessee only during the financial
\n\tyear in which the return is furnished or within six months from the
\n\tend of the month in which the return is furnished, whichever is
\n\tlater.  This means that the Department must serve the said notice on
\n\tthe assessee within this period, if a case is picked up for
\n\tscrutiny. It follows that if an assessee,  after furnishing the
\n\treturn  of income does not receive a notice under section  143(2)
\n\tfrom the Department within  the aforesaid period, he can take it
\n\tthat the return filed  by him has  become final and no scrutiny
\n\tproceedings are to be started in respect of that return .\n<\/p>\n
(Ref:CBDT
\n\tCircular No.549, dated 31st October,1989,
\n\tChaturvedi & Pithisaria’s Income Tax Law, Fifth Edition, Vol.3,
\n\tPg.4737 at Pg.4742).\n<\/p>\n
[8]\tOriginally
\n\tthe period of limitation was provided as  during the financial
\n\tyear in which the return is furnished  or within six months from
\n\tthe end of the month in which the return is furnished. By Finance
\n\t(No.2) Act, 1991 the proviso was substituted by the present proviso
\n\textending the period of limitation to twelve months and vide
\n\tdepartmental circular No.621 dated 19\/12\/1991, it was stated in
\n\tparagraph No.49.1 of the circular that:  The aforesaid period of
\n\tlimitation for the service of a notice under sub-section (2) of
\n\tSection 143 of the Act does not allow sufficient time to the
\n\tAssessing Officers to select returns for scrutiny before assessment.
\n\tTherefore, the provision was amended to provide that the notice can
\n\tbe served within twelve months from the end of the month in which
\n\tthe return is furnished .(Ref:CBDT Circular No.621, dated 19th
\n\tDecember,1991 Chaturvedi & Pithisaria’s  Income Tax Law, Fifth
\n\tEdition, Vol.3, Pg.4747 at Pg.4748).\n<\/p>\n
[9]\tIt
\n\tgoes without saying that the departmental authorities are bound by
\n\tthe circulars issued by the Central Board of Direct Taxes. In the
\n\tcircumstances, it is not open to the revenue to contend otherwise.
\n\tThese Circulars are explanatory. They give contemporaneous
\n\texposition of legal position. Even otherwise,  on a plain reading of
\n\tthe section and the proviso  it is more than abundantly clear  that
\n\tthe proviso prescribes  a mandatory period  of limitation in light
\n\tof the scheme of assessment wherein  majority of  returns are
\n\trequired to be  accepted without scrutiny and only certain returns
\n\tare  taken up for  scrutiny.\n<\/p>\n
Thus,
\n\tthe controversy in issue in the present case stands concluded by the
\n\tabove cited decision and all the contentions raised by
\n\tappellant-revenue stand answered against the revenue and in favour
\n\tof the assessee. The said view also finds support in the decision of
\n\tthe Supreme Court in Assistant Commissioner of Income Tax and
\n\tanother v. Hotel Blue Moon (supra) wherein the Court held
\n\tthat if an assessment is to be completed under section 143(3) read
\n\twith section 158BC, notice under section 143(2) should be issued
\n\twithin one year from the date of filing of the block return.
\n\tOmission on the part of the assessing authority in issuing notice
\n\tunder section 143(2) cannot be a procedural irregularity and is not
\n\tcurable and, therefore, the requirement of notice under section
\n\t143(2) cannot be dispensed with.\n<\/p>\n
The
\n\tdecision of this Court in Madanlal Mathurdas v. Chunilal,
\n\tIncome Tax Officer<\/a> (supra) does not in any manner support
\n\tthe case of the appellant-revenue inasmuch as the said decision was
\n\trendered in a totally different set of facts, in relation to the
\n\tprovisions of section 34 of the said Act and the question as to
\n\twhether notice was required to be served within the prescribed
\n\tperiod did not arise in the said case.\n<\/p>\n
The
\n\tdecision of the Apex Court in Commissioner of Income-tax,
\n\tShillong v. Jai Prakash,<\/a> (1996) 3 SCC 525 on which reliance
\n\thas been placed by the learned advocate for the appellant-revenue,
\n\talso does not carry the case of the revenue any further inasmuch in
\n\tthe facts of the said case pursuant to the death of the assessee,
\n\this eldest son Jai Prakash filed returns. Returns filed by Jai
\n\tPrakash were scrutinized by the Income-tax officer and notices under
\n\tsections 142(1) and 143(2) was served upon the said Jai Prakash. The
\n\tdeceased had, in all, ten legal heirs. During the course of
\n\tassessment proceedings no objection was raised by Jai Prakash as
\n\tregards non-service of notice to the other heirs till the assessment
\n\torder was passed. It was only at the stage of appeal, that the said
\n\tJai Prakash contended that the assessment stood vitiated on the
\n\tground that the other heirs were not served with notice under
\n\tsection 143(2). Thus, the facts of the said case were totally
\n\tdifferent and as such the said decision has no relevance insofar as
\n\tthe present case is concerned.\n<\/p>\n
Insofar
\n\tas the issue regarding the notice under section 143(2) of the Act
\n\tnot being a valid notice, the same does not arise out of the
\n\tquestion formulated by the Court at the time of admission of the
\n\tappeal, nor does the same arise out of the question proposed by the
\n\trevenue in the memo of appeal. In the circumstances, it is not
\n\tnecessary to go into the merits of the said issue.\n<\/p>\n
In
\n\tview of the above discussion, it is abundantly clear that the view
\n\ttaken by the Tribunal is in consonance with the above referred
\n\tdecisions of the Supreme Court as well as this Court. In the
\n\tcircumstances, it cannot be stated that the impugned order of the
\n\tTribunal suffers from any legal infirmity so as to warrant
\n\tinterference. The question is accordingly answered in the negative
\n\ti.e. in favour of the assessee and against the revenue.\n<\/p>\n
\tThe
\n\tappeals are, accordingly, dismissed with no order as to costs.\n<\/p>\n
\t\t\t\t[D.A.MEHTA,
\nJ.]<\/p>\n
[HARSHA
\nDEVANI, J.]<\/p>\n
parmar*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Dy vs Appearance : on 13 April, 2010 Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print TAXAP\/386\/1999 11\/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 386 of 1999 with TAX APPEAL NO.387 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA HONOURABLE MS.JUSTICE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-106856","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDy vs Appearance : on 13 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dy-vs-appearance-on-13-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dy vs Appearance : on 13 April, 2010 - 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