ICI India Limited, Kolkata V. DCIT, Circle-10, Kolkata, Kolkata

ITA 2125/KOL/2005

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9271 (ITAT-KOLKATA)
• Duration Of Justice: 11 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 20-10-2005
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Assessee Lawyers: R N BAJORIA
• Keywords: Opportunity of being heard; Principle of natural justice; Procedural lapse; Block assessment; Reassessment proceedings
• Section: 143(3); 142(1); 147; 145; 148; 144; 10; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA [BEFORE SHRI M. BALAGANESH, AM & SHRI PARTHA SARAT HI CHAUDHURY, JM] I.T.A NO.2125/KOL/2005 ASSESSMENT YEAR: 1999-2000 AKZO NOBEL INDIA LTD. VS. DEPUTY COMMISSIONER OF INCOME-TAX, (FORMERLY KNOWN AS I C I INDIA LTD.) CIRCLE-10, KO LKATA. (PAN: AAACI6297A ( APPELLANT ) ( RESPONDENT ) & I.T.A NO.2568/KOL/2005 ASSESSMENT YEAR: 1999-2000 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. AKZO NOB EL INDIA LTD. CIRCLE-10, KOLKATA. (FORMERLY KNOWN AS I C I IN DIA LTD.) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 02.03.2017 DATE OF PRONOUNCEMENT: 08.03.2017 FOR THE ASSESSEE: SHRI R. N. BAJORIA, SR. ADVOCA TE FOR THE REVENUE: SHRI NIRAJ KUMAR, CIT, DR ORDER PER SHRI M. BALAGANESH, AM: THESE CROSS APPEALS BY ASSESSEE AND REVENUE ARE ARI SING OUT OF ORDER OF CIT(A)-X, KOLKATA VIDE APPEAL NO. 44/CIT(A)-X/CIR-10/05-06 DA TED 01.09.2005. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-10, KOLKATA U/S. 147/143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSME NT YEAR 1999-2000 VIDE HIS ORDER DATED 30.03.2005. SINCE BOTH THE APPEALS ARISE OUT OF TH E SAME ORDER OF CIT(A), WE DISPOSE OF THE SAME BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE FIRST PRELIMINARY ISSUE TO BE DECIDED IN TH IS APPEAL OF THE ASSESSEE IS AS TO WHETHER THE REASSESSMENT FRAMED BY THE LD AO WITHOU T ISSUANCE OF VALID NOTICE U/S 143(2) OF THE ACT COULD BE TAKEN AS VALID IN LAW IN THE FA CTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSE SSEE FILED ITS RETURN OF INCOME FOR THE ASST YEAR 1999-2000 DECLARING NIL INCOME UNDER NORM AL PROVISIONS OF THE ACT AND BOOK PROFITS OF RS. 18,08,95,538/- U/S 115JA OF THE ACT. THE CASE WAS PROCESSED ON 2.11.2000 U/S 143(1)(A) OF THE ACT ACCEPTING THE RETURNED INC OME. SUBSEQUENTLY IT WAS NOTICED THAT DEDUCTIONS UNDER CHAPTER VIA IS ALLOWABLE ONLY IF G ROSS TOTAL INCOME INCLUDES ANY PROFITS 2 ITA NOS.2125 & 2568/K/2005 AKZO NOBEL INDIA LTD., AY 1999-2000 AND GAINS DERIVED FROM INDUSTRIAL UNDERTAKING. IN THE INSTANT CASE, THE GROSS TOTAL INCOME INCLUDES INCOME FROM OTHER SOURCES, LONG TERM CAPIT AL GAIN AND LOSS FROM BUSINESS MEANING THEREBY THAT THERE WAS NO PROFIT FROM THE B USINESS. FURTHER, IT WAS ALSO OBSERVED THAT THERE WAS NO BROUGHT FORWARD CAPITAL LOSS OF R S. 8.44 CRORES AS SET OFF BY THE ASSESSEE FROM LONG TERM CAPITAL GAINS. IT WAS ALSO OBSERVED THAT THE ASSESSEE HAS EARNED GROSS DIVIDEND OF RS 4.77 CRORES AND CLAIMED THE GROSS AM OUNT AS EXEMPT U/S 10(33) OF THE ACT WITHOUT ALLOCATING ANY EXPENSE ON ACCOUNT OF INTERE ST AND OTHER ADMINISTRATIVE EXPENDITURE. ACCORDING TO LD AO , IT IS THE NET DI VIDEND AFTER DEDUCTING EXPENSES WHICH IS EXEMPT U/S 10(33) OF THE ACT. ACCORDINGLY, A NOTI CE U/S 148 OF THE ACT WAS ISSUED TO THE ASSESSEE ON 29.8.2003. THE LD AO ISSUED NOTICE U/S 143(2) OF THE ACT ON 18.11.2004 TO THE ASSESSEE. IN RESPONSE TO NOTICE U/S 148, THE ASSES SEE VIDE ITS LETTER DATED 11.3.2005 FILED A LETTER REQUESTING THE LD AO TO TREAT THE EARLIER RE TURN AS A RETURN FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT. THE ASSESSEE FILED DETAILED W RITTEN SUBMISSIONS VIDE ITS LETTER DATED 21.3.2005 ON VARIOUS ISSUES ON MERITS OF THE CASE A ND THE LD AO COMPLETED THE REASSESSMENT ACCORDINGLY AFTER MAKING SEVERAL ADDIT IONS AND DISALLOWANCES. 4. THE LD AR FILED ADDITIONAL GROUND OF APPEAL BEF ORE US AS BELOW:- THAT THE NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT DATED 18 NOVEMBER 2004 IS OF NO CONSEQUENCE FOR THE MATTER UNDER CONSIDERATION AND NO NOTICE AT ALL WAS ISSUED UNDER SECTION 143(2) OF THE ACT AFTER FILING THE RETURN OF INCOME IN RESPONSE TO NOTICE ISSUED UNDER SECTION 148 OF THE ACT AND HENCE , THE ORDER UNDER SECTION 147 / 143(1) OF THE ACT IS WITHOUT JURISDICTION, ILLEGAL, VOID AND LIABLE TO BE QUASHE D. THE LD AR FAIRLY STATED THAT THE SAID LEGAL GROUND ON JURISDICTION WAS NOT SPECIFICALLY RAISED BEFORE THE LOWER AUTHORITIES AND HENCE IS BE ING RAISED BEFORE THIS TRIBUNAL FOR THE FIRST TIME AS IT GOES INTO THE ROOT OF THE MATTER. HE ALSO STATED THAT THE REASONS FOR NOT CLAIMING THIS GROUND BEFORE THE LOWER AUTHORITIES W AS IN VIEW OF THE AMENDMENT BROUGHT IN THE STATUTE AT THAT POINT OF TIME IN SECTION 148 OF THE ACT VALIDATING ALL THE PROCEEDINGS FOR THE ASSESSMENTS FRAMED DURING THE PERIOD 1.10.1 991 TO 30.9.2005. HE STATED THE ASSESSEE FILED A LETTER DATED 11.3.2005 REQUESTING THE LD AO TO TREAT THE EARLIER RETURN FILED AS A RETURN IN RESPONSE TO NOTICE U/S 148 OF THE AC T. ADMITTEDLY NO NOTICE U/S 143(2) OF THE ACT WAS ISSUED BY THE LD AO TO THE ASSESSEE THEREAF TER TILL THE COMPLETION OF REASSESSMENT ON 30.3.2005. HE ARGUED THAT EVEN THOUGH THE NOTI CE U/S 143(2) OF THE ACT WAS ISSUED ON THE ASSESSEE ON 18.11.2004 , THAT WAS MUCH PRIOR TO THE DATE OF FILING THE RETURN BY THE 3 ITA NOS.2125 & 2568/K/2005 AKZO NOBEL INDIA LTD., AY 1999-2000 ASSESSEE AND HENCE THE SAME CANNOT BE GIVEN ANY REL EVANCE. HE STATED THAT THE SCHEME OF THE ACT PROVIDES THAT THE LD AO ON VERIFICATION OF THE RETURN FILED BY THE ASSESSEE, IF, HE CONSIDERS IT EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NOT UNDER PAID THE T AX IN ANY MANNER, THEN HE MAY ISSUE NOTICE U/S 143(2) OF THE ACT WITHIN THE PRESCRIBED TIME TO THE ASSESSEE BY SELECTING THE CASE FOR SCRUTINY AND TAKE THE NEXT STEP FORWARD FOR FRA MING ASSESSMENT U/S 143(3) OR 144 OF THE ACT, AS THE CASE MAY BE. HENCE THE ISSUANCE OF NOTI CE U/S 143(2) OF THE ACT GETS TRIGGERED ONLY AFTER FILING OF THE RETURN BY THE ASSESSEE. I N CASE IF THE RETURN IS NOT FILED AT ALL BY THE ASSESSEE, THEN THE SCHEME OF THE ACT PROVIDES FOR F RAMING OF ASSESSMENT U/S 144 OF THE ACT AFTER ISSUING NOTICE U/S 142(1) OF THE ACT TO THE A SSESSEE. ACCORDINGLY HE ARGUED THAT THE REASSESSMENT FRAMED IN THE INSTANT CASE WITHOUT ISS UANCE OF VALID NOTICE U/S 143(2) OF THE ACT DESERVES TO BE QUASHED. IN SUPPORT OF HIS ARGUM ENTS, HE PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS HOTEL BLUE MOON REPORTED IN (2010) 321 ITR 362 (SC) DATED 2.2.2010 . 4.1. THE LD AR FURTHER POINTED OUT THAT THERE IS A JUDGEMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS M/S HUMDOLDT WEDAG INDIA PVT LTD IN ITAT NO. 149 OF 2013 G.A. NO. 2598 OF 2013 DATED 8. 4.2014 WHEREIN IT WAS HELD THAT THE ASSESSEE WAS MADE AWARE OF THE PENDING PROCEEDINGS BEFORE THE LD AO AND GIVEN PROPER OPPORTUNITY OF BEING HEARD AND HENCE NON-ISSUANCE O F NOTICE U/S 143(2) OF THE ACT WOULD NOT PER SE VITIATE THE REASSESSMENT PROCEEDINGS U/S 147 OF THE ACT. HE ARGUED THAT THIS DECISION DID NOT HAVE AN OCCASION TO CONSIDER THE D ECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS HOTEL BLUE MOON REPORTED IN 3 21 ITR 362 (SC). HE ALSO PLACED RELIANCE ON YET ANOTHER HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T VS M/S I.S. LEATHER IN GA 277 OF 2013 ITAT 27 OF 2013 DATED 4.4 .2013 WHICH PLACED RELIANCE ON THE JUDGEMENT OF THE APEX COURT IN HOTEL BLUE MOON SUPR A AND UPHELD THE QUASHING OF REASSESSMENT PROCEEDINGS FOR NON-ISSUANCE OF NOTICE U/S 143(2) OF THE ACT. HE ALSO STATED THAT ONE OF THE JUDGES WAS COMMON IN BOTH THE JUDGE MENTS RENDERED HEREIN. HE FURTHER PLACED RELIANCE ON THE RECENT DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF OBEROI HOTELS PRIVATE LIMITED VS DCIT IN ITA NO. 472 /KOL/2012 FOR ASST YEAR 2006-07 DATED 14.5.2015 WHICH HAD CONSIDERED THE DECISION OF HONBLE SUPRE ME COURT IN THE CASE OF HOTEL BLUE MOON SUPRA AND THE DECISION OF HONBL E JURISDICTIONAL HIGH COURT IN THE 4 ITA NOS.2125 & 2568/K/2005 AKZO NOBEL INDIA LTD., AY 1999-2000 CASE OF CIT VS M/S HUMDOLDT WEDAG INDIA PVT LTD IN ITAT NO. 149 OF 2013 G.A. NO. 2598 OF 2013 DATED 8.4.2014. 5. IN RESPONSE TO THIS, THE LD DR VEHEMENTLY OBJEC TED TO THE ARGUMENTS ADVANCED BY THE LD AR AND ARGUED THAT THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE FOR 18 MONTHS PRACTICALLY SHOULD NOT BE REWARDED AT ALL. IN THE INSTANT CASE, THOUGH THE NOTICE U/S 148 OF THE ACT WAS ISSUED ON THE ASSESSEE WAY BACK ON 29.8 .2003 , THE ASSESSEE FOR HIS OWN REASONS CHOSE TO REMAIN SILENT AND NON-COMPLIANT TI LL 10.3.2005 AND IT WAS ONLY ON 11.3.2005 JUST 20 DAYS BEFORE THE COMPLETION OF ASS ESSMENT, HE CHOSE TO COMPLY WITH THE NOTICE U/S 148 OF THE ACT BY FILING A RETURN. ADM ITTEDLY THE NOTICE U/S 148 OF THE ACT STIPULATED TIME LIMIT OF 30 DAYS FOR FILING OF THE RETURN IN RESPONSE TO SECTION 148 NOTICE TO THE ASSESSEE. HE ARGUED THAT THE ISSUANCE OF NOTICE U/S 143(2) OF THE ACT IS ONLY PROCEDURAL FORMALITY AND IS ONLY FOR FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE INFORMING THE ASSESSEE THAT HIS RETURN HAS BEEN SELECTED FOR SCRUTINY AND CO-OPERATION HAS BEEN EXPECTED FROM HIM IN THE FORM OF FILING FURTHER DETAILS. IT IS NOT T HE CASE OF THE ASSESSEE THAT HE WAS NEVER GIVEN OPPORTUNITY FOR EFFECTIVE REPRESENTATION BY I T BEFORE THE LD AO. THIS IS EVIDENT FROM THE FACT THAT THE ASSESSEE HAD FILED A DETAILED WRI TTEN SUBMISSION ON 21.3.2005 IN RESPECT OF VARIOUS ISSUES CONFRONTED BY THE LD AO ON THE ASSES SEE. THE REASSESSMENT HAS BEEN COMPLETED AFTER TAKING INTO ACCOUNT THE VARIOUS SUB MISSIONS MADE BY THE ASSESSEE. HENCE HE STATED THAT NON-ISSUANCE OF NOTICE U/S 143(2) OF THE ACT AFTER THE FILING OF RETURN OF INCOME ON 11.3.2005 DOES NOT MAKE THE REASSESSMENT VOID THOUGH IT WOULD MAKE THE REASSESSMENT IRREGULAR WHICH IS CURABLE IN LAW. THE ASSESSEE HAD PARTICIPATED IN THE REASSESSMENT PROCEEDINGS BY FILING DETAILED WRITTEN SUBMISSIONS ON 21.3.2005 AND HAD NOT OBJECTED TO NON-ISSUANCE OF NOTICE U/S 143(2) OF TH E ACT BEFORE THE LD AO PRIOR TO COMPLETION OF REASSESSMENT PROCEEDINGS. HENCE AS P ER SECTION 292BB OF THE ACT, THE PROCEEDING DOES NOT BECOME INVALID. IN SUPPORT OF HIS ARGUMENTS, HE PLACED RELIANCE ON THE FOLLOWING DECISIONS:- (A) HONBLE KERALA HIGH COURT IN THE CASE OF K.J.TH OMAS VS CIT REPORTED IN (2008) 301 ITR 301 (KER) DATED 14.1.2008 (B) HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT, HISAR VS RAM NARAIN BANSAL REPORTED IN (2011) 202 TAXMAN 213 DATED 13.7.2011 (C ) HONBLE MADRAS HIGH COURT IN THE CASE OF AREVA T & D INDIA LTD VS ACIT REPORTED IN (2007) 294 ITR 233 (MAD) DATED 8.11.2006 5 ITA NOS.2125 & 2568/K/2005 AKZO NOBEL INDIA LTD., AY 1999-2000 6. IN DEFENCE, THE LD AR POINTED OUT THAT THE DEC ISIONS RELIED UPON BY THE LD DR HAVE BEEN RENDERED PRIOR TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON SUPRA AND HENCE THEY ARE OF NO RELEVANCE. EVEN THE DECISION RENDERED BY HONBLE PUNJAB & HARYANA HIGH COURT HAD NOT CONSIDE RED THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON SUPRA. MOREOVER, THE SAID ORDER WAS PASSED BY THE HONBLE PUNJAB & HARYANA HIGH COURT AFTER HE ARING THE LEARNED COUNSEL FOR THE REVENUE ALONE AND THERE WAS NO APPEARANCE MADE BY T HE LEARNED COUNSEL FOR THE ASSESSEE RESPONDENT AS COULD BE EVIDENT FROM THE SAID JUDGEM ENT. HENCE THERE COULD NOT HAVE BEEN ANY OCCASION FOR THE SAID COURT TO LOOK INTO THE J UDGEMENT OF THE HONBLE APEX COURT ON THE IMPUGNED SUBJECT. HE ALSO PLACED ON RECORD A SU BSEQUENT DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF SAPTHAGIRI FINANCE & INVESTMENTS VS ITO REPORTED IN (2012) 25 TAXMANN.COM 341 (MAD) WHEREIN THEIR LORDSHIPS HAD RENDERED THE JUDGEMENT AFTER CONSIDERING THE EARLIER DECISION OF THAT COUR T IN 294 ITR 233 (MAD) SUPRA AND BY PLACING RELIANCE ON THE HONBLE SUPREME COURT DECIS ION IN THE CASE OF HOTEL BLUE MOON HELD THAT THE ISSUANCE OF NOTICE U/S 143(2) OF THE ACT STIPULATED IN THE STATUTE IS MANDATORY AND ACCORDINGLY THE REASSESSMENT FRAMED THEREON COU LD NOT BE HELD TO BE VALIDLY MADE. IT ALSO HELD THAT MERELY BECAUSE THE ASSESSEE HAD PART ICIPATED IN THE PROCEEDINGS AND HIS SIGNATURE IS AFFIXED IN THE RECORDS, IT DOES NOT ME AN THAT THE REST OF PROCEDURE OF NOTICE U/S 143(2) OF THE ACT STOOD COMPLIED WITH. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. THE FOLLOWING FACTS ARE UNDISPUTED AND INDISPUTABLE :- DATE OF ISSUING NOTICE U/S 148 OF THE ACT BY THE LD AO - 29.8.2003 DATE OF ISSUING NOTICE U/S 143(2) OF THE ACT BY THE LD AO - 18.11.2004 DATE OF FILING THE RETURN BY THE ASSESSEE IN COMPLI ANCE TO NOTICE U/S 148 OF THE ACT - 11.3.2005 DATE OF COMPLETION OF REASSESSMENT - 30.3.2005 IT IS NOT IN DISPUTE THAT NO NOTICE U/S 143(2) OF T HE ACT WAS ISSUED BY THE LD AO AFTER 11.3.2005 AND ON OR BEFORE 30.3.2005 AND NOR THE IS SUANCE OF NOTICE U/S 143(2) OF THE ACT WAS WAIVED BY THE ASSESSEE. WE HAVE ALSO PERUSED THE ORDER SHEET ENTRIES THAT WERE PLACED BEFORE US . WE FIND THAT NO NOTICE U/S 143( 2) OF THE ACT WAS SERVED ON THE ASSESSEE 6 ITA NOS.2125 & 2568/K/2005 AKZO NOBEL INDIA LTD., AY 1999-2000 AFTER 11.3.2005 AND BEFORE 30.3.2005 . THE SCHEME OF THE ACT IS DESIGNED IN SUCH A WAY THAT ONCE THE RETURN IS FILED BY THE ASSESSEE, THE LD AO, IF HE CONSIDERS IT NECESSARY AND EXPEDIENT TO ENSURE THAT THE ASSESSEE HAD NOT UNDER PAID THE TAX IN ANY MANNER NOR HAD NOT UNDERSTATED HIS INCOME ETC, THEN THE STATUTE PROVID ES THE LD AO TO SELECT THE CASE FOR SCRUTINY BY ISSUING NOTICE U/S 143(2) OF THE ACT IN TIMATING THE ASSESSEE THAT FURTHER DETAILS ARE REQUIRED FOR COMPLETION OF ASSESSMENT. THERE I S NO DIFFERENCE IN THIS REGARD WITH REGARD TO ASSESSMENT OR REASSESSMENT PROCEEDINGS. A LL THE RETURNS FILED BY ALL THE ASSESSEES ARE NOT TAKEN UP FOR SCRUTINY BY ISSUANCE OF NOTICE U/S 143(2) OF THE ACT. THAT IS WHY THE LEGISLATURE IN ITS WISDOM HAD PROVIDED A LEEWAY FOR THE REVENUE TO SELECT THE CASES FOR SCRUTINY ONLY IN THOSE CASES WHERE THE LD AO DEEMS IT DESIRABLE TO MAKE FURTHER ENQUIRIES ON THE RETURN FILED BY THE ASSESSEE. HENCE THE ISSU ANCE OF NOTICE U/S 143(2) OF THE ACT BECOMES A JURISDICTIONAL ISSUE AND ACCORDINGLY TO B E HELD AS MANDATORY IN NATURE AND CANNOT BE BRUSHED ASIDE AS A MERE PROCEDURAL FORMAL ITY. FOR THE SAKE OF CONVENIENCE, THE PROVISIONS OF SECTION 143(2) OF THE ACT ARE REPRODU CED HEREUNDER:- ASSESSMENT . 143. 43 [ (2) WHERE A RETURN HAS BEEN FURNISHED UNDER SECTION 139 , OR IN RESPONSE TO A NOTICE UNDER SUB- SECTION (1) OF SECTION 142 , THE ASSESSING OFFICER OR THE PRESCRIBED INCOME-TA X AUTHORITY, AS THE CASE MAY BE, IF, CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NO T UNDER-PAID THE TAX IN ANY MANNER, SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM, ON A DATE TO BE SPECIFIED THEREIN, EITHER TO ATTEND THE OFFICE OF THE ASSESSING OFFICER OR TO PRODUCE, OR C AUSE TO BE PRODUCED BEFORE THE ASSESSING OFFICER ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPP ORT OF THE RETURN: PROVIDED THAT NO NOTICE UNDER THIS SUB-SECTION SHALL BE SERV ED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WH ICH THE RETURN IS FURNISHED. ] 7.1. WE FIND THAT THE LD DR PLACED RELIANCE ON THE PROVISO TO SECTION 148 OF THE ACT FOR NON-ISSUANCE OF NOTICE U/S 143(2) OF THE ACT. FOR THE SAKE OF CONVENIENCE, THE PROVISIONS OF SECTION 148 OF THE ACT ARE REPRODUCED HEREUNDER: - ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMENT . 148. (1) BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION 147 , THE ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE A NOT ICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INCOME OR THE INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DU RING THE PREVIOUS YEAR CORRESPONDING TO THE RELEVANT ASSESSMENT YEAR, IN THE PRESCRIBED FORM AN D VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED; AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139 : PROVIDED THAT IN A CASE 7 ITA NOS.2125 & 2568/K/2005 AKZO NOBEL INDIA LTD., AY 1999-2000 (A) WHERE A RETURN HAS BEEN FURNISHED DURING THE PE RIOD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDING ON THE 30TH DAY OF SEPTEMBER, 2005 IN RESPONSE TO A NOTICE SERVED UNDER THIS SECTION, AND (B) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER SUB -SECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SPECIFIED IN THE PROVISO TO SUB-SECTI ON (2) OF SECTION 143 , AS IT STOOD IMMEDIATELY BEFORE THE AMENDMENT OF SAID SUB-SECTIO N BY THE FINANCE ACT, 2002 (20 OF 2002) BUT BEFORE THE EXPIRY OF THE TIME LIMIT FOR M AKING THE ASSESSMENT, RE-ASSESSMENT OR RECOMPUTATION AS SPECIFIED IN SUB-SECTION (2) OF SECTION 153 , EVERY SUCH NOTICE REFERRED TO IN THIS CLAUSE SHALL BE DEEMED TO BE A VALID NOTICE: PROVIDED FURTHER THAT IN A CASE (A) WHERE A RETURN HAS BEEN FURNISHED DURING THE PE RIOD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDING ON THE 30TH DAY OF SEPTEMBER, 2005, IN RESPONSE TO A NOTICE SERVED UNDER THIS SECTION, AND (B) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER CLA USE (II) OF SUB-SECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SPECIFIED IN THE PROVIS O TO CLAUSE (II) OF SUB-SECTION (2) OF SECTION 143 , BUT BEFORE THE EXPIRY OF THE TIME LIMIT FOR MAKIN G THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS SPECIFIED IN SUB-SECTION (2) OF SECTION 153 , EVERY SUCH NOTICE REFERRED TO IN THIS CLAUSE SHALL BE DEEMED TO BE A VALID NOTICE. EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HEREB Y DECLARED THAT NOTHING CONTAINED IN THE FIRST PROVISO OR THE SECOND PROVISO SHALL APPLY TO ANY RE TURN WHICH HAS BEEN FURNISHED ON OR AFTER THE 1ST DAY OF OCTOBER, 2005 IN RESPONSE TO A NOTICE SE RVED UNDER THIS SECTION. (2) THE ASSESSING OFFICER SHALL, BEFORE ISSUING ANY NOTICE UNDER THIS SECTION, RECORD HIS REASONS FOR DOING SO. FROM THE BARE PERUSAL OF THE AFORESAID PROVISIONS, IT COULD BE INFERRED THAT THE SAID PROVISO WOULD COME TO THE RESCUE OF THE REVENUE ONLY IF THE NOTICE U/S 143(2) OF THE ACT HAS BEEN SERVED ON THE ASSESSEE BEYOND THE PERIOD OF 12 MONT HS AS SPECIFIED IN THE SAID SECTION AND THEREBY EVEN THOUGH THE SAID NOTICE U/S 143(2) OF T HE ACT WAS ISSUED BEYOND THE STIPULATED TIME OF 12 MONTHS, IT WOULD BE DEEMED TO BE TREATED AS A VALID NOTICE AND REASSESSMENT PROCEEDINGS CANNOT BE CHALLENGED ON THAT COUNT BY T HE ASSESSEE. IN OUR CONSIDERED OPINION, THE PROVISO WOULD BE APPLICABLE ONLY IN A CASE WHERE NOTICE U/S 143(2) HAS BEEN SERVED ON THE ASSESSEE BUT BEYOND THE STIPULATED PE RIOD OF 12 MONTHS. THE LEGISLATURE IN ITS WISDOM HAD PROVIDED THIS LEEWAY TO THE REVENUE IN O RDER TO REGULARIZE OR VALIDATE THE DEFICIENCIES IN ISSUANCE OF NOTICE U/S 143(2) OF TH E ACT IN RESPECT OF RETURNS FILED DURING THE PERIOD COMMENCING FROM 1.10.1991 TO 30.9.2005. THE EXPLANATION GIVEN FURTHER CLEARLY STATES THAT THE SAME WOULD NOT APPLY FOR TH E RETURNS FILED ON OR AFTER 1.10.2005. HENCE FROM THE ABOVE, THE FOLLOWING CONCLUSIONS COU LD BE SAFELY DRAWN :- (I) ISSUANCE OF NOTICE U/S 143(2) OF THE ACT IS MANDATO RY IN NATURE. (II) IN RESPECT OF RETURNS FILED DURING THE PERIOD 1.10. 1991 TO 30.9.2005, THE NOTICE U/S 143(2) OF THE ACT SHALL BE DEEMED TO BE A VALID NOTICE EVENTHOUGH THE SAME WAS SERVED BEYOND THE STIPULATED PERIOD OF 12 MONTH S. 8 ITA NOS.2125 & 2568/K/2005 AKZO NOBEL INDIA LTD., AY 1999-2000 IN THE INSTANT CASE, ADMITTEDLY THERE WAS NO ISSUA NCE OF NOTICE U/S 143(2) OF THE ACT AFTER THE FILING OF THE RETURN BY THE ASSESSEE ON 11.3.20 05 AND BEFORE THE COMPLETION OF REASSESSMENT ON 30.3.2005 . HENCE, WE HOLD THAT THE PROVISO TO SECTION 148 O F THE ACT WOULD NOT ADVANCE THE CASE OF THE REVENUE. 7.2. WE FIND LOT OF FORCE IN THE VARIOUS ARGUMENTS OF THE LD AR AS DETAILED HEREINABOVE AND THE SAME ARE NOT REITERATED HEREIN FOR THE SAKE OF BREVITY. WE ARE NOT INCLINED TO ACCEPT TO THE ARGUMENT OF THE LD DR THAT THE ASSESS EE SHOULD NOT BE REWARDED FOR ITS NON- COMPLIANCE BY DELAYED FILING OF RETURN BY 18 MONTHS . WE FIND THAT IN SUCH A SCENARIO, NOTHING PREVENTED THE LD AO FROM PROCEEDING TO COMP LETE THE REASSESSMENT U/S 144 OF THE ACT AFTER ISSUANCE OF NOTICE U/S 142(1) OF THE ACT. THIS IS VERY CLEARLY PROVIDED IN THE SCHEME OF THE ACT. ADMITTEDLY, THE IMPUGNED REASSE SSMENT HAS BEEN FRAMED BY THE LD AO U/S 143(3) OF THE ACT. WE ALSO HOLD THAT SHELTER U /S 292BB OF THE ACT CANNOT BE TAKEN BY THE REVENUE FOR JURISDICTIONAL ISSUE. IN THE INSTA NT CASE, ADMITTEDLY NO NOTICE U/S 143(2) OF THE ACT WAS SERVED ON THE ASSESSEE AFTER THE FILING OF THE RETURN ON 11.3.2005. HENCE THE PROVISIONS OF SECTION 292BB OF THE ACT WOULD NOT AD VANCE THE CASE OF THE REVENUE. 7.3. WE FIND THAT THE ISSUE UNDER DISPUTE IS SQUARE LY COVERED BY THE RECENT DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF O BEROI HOTELS PRIVATE LIMITED VS DCIT IN ITA NO. 472/KOL/2012 AND DCIT VS OBEROI HOTELS PRIV ATE LIMITED IN ITA NO. 601/KOL/2012 FOR ASST YEAR 2006-07 DATED 14.5.2015 WHEREIN IT WAS HELD THAT :- 3. SINCE THE ADDITIONAL GROUND TAKEN BY THE ASSES SEE BEING A LEGAL GROUND IS GOING TO THE ROOT OF THE VALIDITY OF THE ASSESSMENT, IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE C ASE OF NATIONAL THERMAL POWER CO. LIMITED VS.- CIT REPORTED IN (1998) 229 ITR 383, WE, THEREFORE, ADMIT THE ADDITIONAL GROUND RAI SED BY THE ASSESSEE. 4. LD. A.R. BEFORE US VEHEMENTLY CONTENDED THAT TH E NOTICE UNDER SECTION 143(2) HAS BEEN SERVED ON THE ASSESSEE AND, THEREFORE, IN VIEW OF T HE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT & ANOTHER VS.- HOTEL BLUE MOO N REPORTED IN 321 IT R 362, THE ASSESSMENT B E QUASHED IN CONSIDERING THE FAILURE O F THE ASSESSING OFFICER IN ISSUING NOTICE UNDER SECTION 143(2) IN RESPECT OF THE RE-ASSESSMEN T. THE HONBLE APEX COURT HELD THAT IF THE ASSESSING OFFICER, IF FOR ANY REASON, REPUDIATES TH E RETURN FILED BY THE ASSESSEE IN RESPONSE TO NOTICE UNDER SECTION 158BC(A), THE ASSESSING OFFICE R MUST NECESSARILY ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE TIME PRESCRIBE D IN THE PROVISO TO SECTION 143(2) OF THE ACT. IF AN ASSESSMENT IS TO BE COMPLETED UNDER SECT ION 143(3) READ WITH SECTION 158BC, NOTICE UNDER SECTION 143(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING OF THE BLOCK RETURN. EVEN THE HONBLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA) DID NOT ACCEPT THE SUBMISSION OF THE REVENUE THAT IT HA S A PROCEDURAL IRREGULARITY, COPY OF THE ORDER- SHEET WAS FILED BEFORE US. 9 ITA NOS.2125 & 2568/K/2005 AKZO NOBEL INDIA LTD., AY 1999-2000 5. ON THE OTHER HAND, LD. D.R. VEHEMENTLY RELIED O N THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT IN IT AT NO. 149 OF 2013 IN THE CASE OF CIT VS.- M/S. HUMBOLDT WEDAG INDIA PVT. LTD. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME ALONG WITH THE ORDER OF THE TAX AUTHORITIES BELOW. WE CALLED FOR T HE RECORD OF THE REVENUE TO VERIFY WHETHER ANY NOTICE UNDER SECTION 143(2) WAS ISSUED BY THE A SSESSING OFFICER WHILE FRAMING THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 1 47. FROM THE FILE WE DO NOT FIND ANY ENTRY IN THE ORDER-SHEET REGARDING THE ISSUE OF THE NOTICE UNDER SECTION 143(2). LD. D.R. WAS GIV EN THE OPPORTUNITY TO VERIFY FROM TH E FILE WHE THER ANY NOTICE UNDER SECTION 143(2) WAS ISSUED AND SERVED ON THE ASSESSEE. THE CASE WAS ADJ OURNED ONLY FOR THIS PURPOSE TO 17.04.2015, THEN 01.05.2015 AND ULTIMATELY ON 11. 0 5.2015, BUT NO EVIDENCE WHATSOEVER FOR THE SERVICE OF NOTICE UNDER SECTION 143(2) WAS FILE D ON BEHALF OF THE REVENUE. ALTHOUGH THE LD. AR RELIED ON THE ORDER OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT V S.- M/S. HUMBOLDT WEDAG INDIA PVT. LTD. WE NOTED THAT IN THI S DECISION THE HONBLE CALCUTTA HIGH COURT HAS HELD AS UNDER:- THE OBJECT OF NOTICE IS TO MAKE A PARTY AWARE O F THE PROCEEDING S, WHICH IN THIS CASE WAS UNDER SECTION 143(3). WHEN THE PARTY IS AL READY AWARE OF THE INTENDED PROCEEDING S AND OPERATED THEREIN, SERVICE OF A NOT ICE IS A N IDLE FORMALITY. IN THAT CASE, IT CANNOT BE SAID THAT THERE HAS BEEN ANY VIO LATION OF ANY PRINCIPLES OF NATURAL JUSTICE. THIS IS THE WHOLESOME PRINCIPLE WHICH WAS STATUTORILY RECOGNIZED UNDER SECTION 292BB O F THE ACT. THE LEARNED TRIBUNAL HEL D THAT THE AFORESAID PROVISION HAS PROSPECTIVE OPERATION. WE ARE UNABLE TO AGREE W ITH THE LD. TRIBUNAL. THIS WAS A PROCEDURAL MATTER AND THE AMENDMENT WILL HAVE RETRO SPECTIVE EFFECT AND SHALL APPLY TO THE PENDING PROCEEDINGS. 7. WE NOTED FROM PAGE 2 OF THE ORDER OF THE HONBL E CALCUTTA HIGH COURT THAT IN THIS CASE, THE HONBLE HIGH COURT HAS NOTED THAT THE ASSESSING OFFICER HAS RECORDED IN HIS ORDER THAT HE HAD ISSUED NOTICE UNDER SECTION 143(2) OF THE AC T. BUT THE LD. CIT(APPEALS) DID NOT FIND ANY INDICATION TO SHOW THAT ANY NOTICE UNDER SECTIO N 143(2) OF THE INCOME TAX ACT HAD, IN FACT, BEEN ISSUED. FROM THIS ORDER, WE ALSO NOTED T HAT THE DECISION OF THE HONBLE SUPREME COURT WAS NOT CITED BEFORE THE HONBLE CALCUTTA HIG H COURT AS HAS BEEN RELIED ON BY THE LD. A.R. HONBLE HIGH COURT DID NOT HAVE ANY OCCASION T O DISCUSS THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT & ANOTHER VS.- H OTEL BLUE MOON REPORTED IN 321 ITR 362. 8. WE HAVE ALSO GONE THROUGH THE DECISION OF THE H ONBLE SUPREME COURT IN THE CASE OF ACIT & ANOTHER VS.- HOTEL BLUE MOON REPORTED IN 32 1 ITR 362. IN THIS DECISION WE NOTED THAT THE HONBLE SUPREME COURT HAS HELD WHILE DEALI NG WITH THE QUESTION WHETHER ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ISSUANCE OF THE NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT WITHIN THE PRESCRIBED PERIOD OF TIME FOR THE PURPOSE OF MAKING THE ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX A CT IS MANDATORY AND HELD AS UNDER:- 15. WE MAY NOW REVERT BACK TO SECTION 158BC(B) WHI CH IS THE MATERIAL PROVISION WHICH REQUIRES OUR CONSIDERATION. SECTION 158 BC(B) PROVIDES FOR ENQUIRY AND ASSESSMENT. THE SAID PROVISION READS THAT THE ASSE SSING OFFICER SHALL PROCEED TO DETERMINE THE UNDISCLOSED INCOME OF THE BLOCK PERIO D IN THE MANNER LAID DOWN IN SECTION 158 BB AND THE PROVISIONS OF SECTION 142, S UB-SECTION (2)AND (3) OF SECTION 143, SECTION 144 AND SECTION 145 SHALL, SO FAR AS M AY BE, APPLY. AN ANALYSIS OF THIS SUB SECTION INDICATES THAT, AFTER THE RETURN IS FIL ED, THIS CLAUSE ENABLES THE ASSESSING OFFICER TO COMPLETE THE ASSESSMENT BY FOLLOWING THE PROCEDURE LIKE ISSUE OF NOTICE UNDER SECTIONS 143(2)/142 AND COMPLETE THE ASSESSME NT UNDER SECTION 143(3). THIS SECTION DOES NOT PROVIDE FOR ACCEPTING THE RETURN A S PROVIDED UNDER SECTION 143(I)(A). THE ASSESSING OFFICER HAS TO COMPLETE TH E ASSESSMENT UNDER SECTION 143(3) 10 ITA NOS.2125 & 2568/K/2005 AKZO NOBEL INDIA LTD., AY 1999-2000 ONLY. IN CASE OF DEFAULT IN NOT FILING THE RETURN O R NOT COMPLYING WITH THE NOTICE UNDER SECTIONS 143(2)/142, THE ASSESSING OFFICER IS AUTHORIZED TO COMPLETE THE ASSESSMENT EX-PARTE UNDER SECTION 144. CLAUSE (B) O F SECTION 158 BC BY REFERRING TO SECTION 143(2) AND (3) WOULD APPEAR TO IMPLY THAT T HE PROVISIONS OF SECTION 143(1) ARE EXCLUDED. BUT SECTION 143(2) ITSELF BECOMES NEC ESSARY ONLY WHERE IT BECOMES NECESSARY TO CHECK THE RETURN, SO THAT WHERE BLOCK RETURN CONFORMS TO THE UNDISCLOSED INCOME INFERRED BY THE AUTHORITIES, THE RE IS NO REASON, WHY THE AUTHORITIES SHOULD ISSUE NOTICE UNDER SECTION 143(2 ). HOWEVER, IF AN ASSESSMENT IS TO BE COMPLETED UNDER SECTION 143(3) READ WITH SECTION 158-BC, NOTICE UNDER SECTION 143(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DA TE OF FILING OF BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTION 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE AND, THEREFORE, THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) CANNOT B E DISPENSED WITH. THE OTHER IMPORTANT FEATURE THAT REQUIRES TO BE NOTICED IS TH AT THE SECTION 158 BC(B) SPECIFICALLY REFERS TO SOME OF THE PROVISIONS OF TH E ACT WHICH REQUIRES TO BE FOLLOWED BY THE ASSESSING OFFICER WHILE COMPLETING THE BLOCK ASSESSMENTS UNDER CHAPTER XIV- B OF THE ACT. THIS LEGISLATION IS BY INCORPORATION. THIS SECTION EVEN SPEAKS OF SUBSECTIONS WHICH ARE TO BE FOLLOWED BY THE ASSESSI NG OFFICER. HAD THE INTENTION OF THE LEGISLATURE WAS TO EXCLUDE THE PROVISIONS OF CH APTER XIV OF THE ACT THE LEGISLATURE WOULD HAVE OR COULD HAVE INDICATED THAT ALSO. A READING OF THE PROVISION WOULD CLEARLY INDICATE, IN OUR OPINION, IF THE ASSE SSING OFFICER, IF FOR ANY REASON, REPUDIATES THE RETURN FILED BY THE ASSESSEE IN RESP ONSE TO NOTICE UNDER SECTION 158BC(A), THE ASSESSING OFFICER MUST NECESSARILY IS SUE NOTICE UNDER SECTION 143(2) OF THE ACT WITHIN THE TIME PRESCRIBED IN THE PROVIS O TO SECTION 143(2) OF THE ACT. WHERE THE LEGISLATURE INTENDED TO EXCLUDE CERTAIN P ROVISIONS FROM THE AMBIT OF SECTION 158 BC(B)IT HAS DONE SO SPECIFICALLY. THUS, WHEN SECTION 158BC(B) SPECIFICALLY REFERS TO APPLICABILITY OF THE PROVISO THERETO CANNOT BE EXCLUDE. WE MAY ALSO NOTICE HERE ITSELF THAT THE CLARIFICATION GIVE N BY CBDT IN ITS CIRCULAR NO.717 DATED 14TH AUGUST, 1995, HAS A BINDING EFFECT ON TH E DEPARTMENT, BUT NOT ON THE COURT. THIS CIRCULAR CLARIFIES THE REQUIREMENT OF L AW IN RESPECT OF SERVICE OF NOTICE UNDER SUB-SECTION (2) OF SECTION 143 OF THE ACT. AC CORDINGLY, WE CONCLUDE EVEN FOR THE PURPOSE OF CHAPTER XIV-B OF THE ACT, FOR THE DE TERMINATION OF UNDISCLOSED INCOME FOR A BLOCK PERIOD UNDER THE PROVISIONS OF S ECTION 158 BC, THE PROVISIONS OF SECTION 142 AND SUB-SECTIONS (2) AND (3) OF SECTION 143 ARE APPLICABLE AND NO ASSESSMENT COULD BE MADE WITHOUT ISSUING NOTICE UND ER SECTION 143(2) OF THE ACT. HOWEVER, IT IS CONTENDED BY SRI SHEKHAR, LEARNED CO UNSEL FOR THE DEPARTMENT THAT IN VIEW OF THE EXPRESSION SO FAR AS MAY BE IN SECTIO N 153 BC(B), THE ISSUE OF NOTICE IS NOT MANDATORY BUT OPTIONAL AND ARE TO BE APPLIED TO THE EXTENT PRACTICABLE. IN SUPPORT OF THAT CONTENTION, THE LEARNED COUNSEL HAS RELIED ON THE OBSERVATION MADE BY THIS COURT IN DR. PRATAP SINGHS CASE [1985] 155 ITR 166(SC). IN THIS CASE, THE COURT HAS OBSERVED THAT SECTION 37(2) PROVIDES THAT THE PROVISIONS OF THE CODE RELATING TO SEARCHES, SHALL SO FAR AS MAY BE, APPLY TO SEARCHES DIRECTED UNDER SECTION 37(2). READING THE TWO SECTIONS TOGETHER IT MERELY MEANS THAT THE METHODOLOGY PRESCRIBED FOR CARRYING OUT THE SEARCH PROVIDED IN SECTION 165 HAS TO BE GENERALLY FOLLOWED. THE EXPRESSION SO FAR AS MAY BE HAS ALW AYS BEEN CONSTRUED TO MEAN THAT THOSE PROVISIONS MAY BE GENERALLY FOLLOWED TO THE EXTENT POSSIBLE. THE LEARNED COUNSEL FOR THE RESPONDENT HAS BROUGHT TO OUR NOTIC E THE OBSERVATIONS MADE BY THIS COURT IN THE CASE OF MAGANLAL VS. JAISWAL INDUSTRIE S, NEEMACH AND ORS., [(1989) 4 SCC 344], WHEREIN THIS COURT WHILE DEALING WITH THE SCOPE AND IMPORT OF THE EXPRESSION AS FAR AS PRACTICABLE HAS STATED WITH OUT ANYTHING MORE THE EXPRESSION `AS FAR AS POSSIBLE WILL MEAN THAT THE MANNER PROV IDED IN THE CODE FOR ATTACHMENT OR SALE OF PROPERTY IN EXECUTION OF A DECREE SHALL BE APPLICABLE IN ITS ENTIRETY EXCEPT SUCH PROVISION THEREIN WHICH MAY NOT BE PRACTICABLE TO BE APPLIED. 16) THE CASE OF THE REVENUE IS THAT THE EXPRESSION `SO FAR AS MAY BE APPLY INDICATES THAT IT IS NOT EXPECTED TO FOLLOW THE PROVISIONS OF SECTION 142, SUBSECTIONS 2 AND 3 OF 11 ITA NOS.2125 & 2568/K/2005 AKZO NOBEL INDIA LTD., AY 1999-2000 SECTION 143 STRICTLY FOR THE PURPOSE OF BLOCK ASSES SMENTS. WE DO NOT AGREE WITH THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE REVENUE, SINCE WE DO NOT SEE ANY REASON TO RESTRICT THE SCOPE AND MEANING OF THE EXPRESSION `SO FAR AS MAY BE APPLY. IN OUR VIEW, WHERE THE ASSESSING OFFICER IN REPUDIATION OF THE RETURN FILED UNDER SECTION 158 BC(A) PROCEEDS TO MAKE AN ENQUIRY, HE HAS NECESSARI LY TO FOLLOW THE PROVISIONS OF SECTION 142, SUB-SECTIONS (2) AND (3) OF SECTION 14 3. 17) SECTION 158 BH PROVIDES FOR APPLICATION OF THE OTHER PROVISIONS OF THE ACT. IT READS : SAVE AS OTHERWISE PROVIDED IN THIS CHAPTER , ALL THE OTHER PROVISIONS OF THIS ACT SHALL APPLY TO ASSESSMENT MADE UNDER THIS CHAPT ER. THIS IS AN ENABLING PROVISION, WHICH MAKES ALL THE PROVISIONS OF THE AC T, SAVE AS OTHERWISE PROVIDED, APPLICABLE FOR PROCEEDINGS FOR BLOCK ASSESSMENT. TH E PROVISIONS WHICH ARE SPECIFICALLY INCLUDED ARE THOSE WHICH ARE AVAILABLE IN CHAPTER XIV-B OF THE ACT, WHICH INCLUDES SECTION 142 AND SUB-SECTIONS (2) AND (3) OF SECTION 143. 18) ON A CONSIDERATION OF THE PROVISIONS OF CHAPTER XIV-B OF THE ACT, WE ARE IN AGREEMENT WITH THE REASONING AND THE CONCLUSION REA CHED BY THE HIGH COURT. 9. FROM THE SAID DECISION, WE NOTED THAT THE HONBL E SUPREME COURT HAS LAID DOWN THE PROPOSITION OF THE LAW THAT IF ASSESSING OFFICER FO R ANY REASON REFUSES THE RETURN FILED BY THE ASSESSEE IN RESPONSE TO THE NOTICE UNDER SECTION 15 8BC OF THE INCOME TAX ACT RELATING TO BLOCK ASSESSMENT. THE ASSESSING OFFICER MUST NECESS ARILY ISSUE NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT WITHIN THE TIME PRESCRIBED IN THE PROVISO TO SECTION 143(2) OF THE ACT. BY MAKING THE ISSUE OF NOTICE MANDATORY, SECTION 15 8BC, DEALING WITH BLOCK ASSESSMENTS, MAKES SUCH NOTICE THE VERY FOUNDATION FOR JURISDICT ION. SUCH NOTICE IS REQUIRED TO BE SERVED ON THE PERSON WHO IS FOUND TO HAVE UNDISCLOSED INCO ME. WE NOTED THAT THE EXPRESSION SO FAR AS MAY BE HAS ALWAYS BEEN CONSTRUED TO MEAN THAT T HOSE PROVISIONS MAY BE GENERALLY FOLLOWED TO THE EX TENT POSSIBLE. IT INDICATES THA T IT IS NOT EXPECTED TO FOLLOW THE PROVISIONS OF SECTION 142, SUB-SECTIONS (2) AND (3) OF SECTION 14 3 STRICTLY FOR THE PURPOSE OF B LOCK ASSESSMENTS. THUS UNDERSTANDING THESE PROVISIONS IN THE BACKGROUND OF THE DECISION OF THE HONBLE SUPREME COURT, WE ARE OF THE VIEW THAT IN C OMPLETING THE ASSESSMENT UNDER SECTION 148 OF THE ACT, COMPLIANCE OF THE PROCEDURE L AID D OWN UNDER SECTION 142 AND 143(2) IS MANDATORY. IT IS A FACT THAT GATHERED FROM THE RECO RD THAT NO NOTICE WAS ISSUED UNDER SECTION 143(2) AND NO EVIDENCE IN THIS REGARD WAS PLACED BE FORE US BY THE LD. D.R. NO DOUBT, HONBLE CALCUTTA HIGH COURT IN THE CASE AS RELIED B Y THE LD. D.R. HAS TAKEN A CONTRARY VIEW BUT IN THAT CASE, WE NOTED THAT THE ASSESSING OFFIC ER HAS RECORDED A FINDING THAT HE HAS REFUSED THE NOTICE UNDER SECTION 143(2). WE ALSO NO TED THAT IN THAT DECISION, THE DECISION OF THE HONBLE SUPREME COURT HAS NOT BEEN REFERRED TO. NOW BEFORE US SINCE BOTH THE DECISION OF THE HONBLE SUPREME COURT AS WELL AS THE DECISIO N OF THE HONBLE JURISDICTIONAL HIGH COURT ARE THERE AND SINCE LAW HAS BEEN SETTLED BY T HE HONBLE SUPREME COURT, WE ARE OF THE VIEW THAT WE ARE BOUND TO FOLLOW THE DECISION OF TH E HONBLE SUPREME COURT. LD. D.R. EVEN THOUGH RELIED ON THE DECISION OF THE HONBLE CALCUT TA HIGH COURT COULD NOT STATE BEFORE US HOW THE CASE OF THE ASSESSEE IS NOT COVERED BY THE DECISION OF THE HONBLE SUPREME COURT. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT QUASH THE ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 147 AS IN OUR OPINION, THIS ISSUE IS NO MORE RES INTEGRA IN VIEW OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF ACIT & ANOTHER VS.- HOTEL BLUE MOON REPORTED IN 321 ITR 3 62. 10. SINCE WE HAVE ALREADY QUASHED THE ASSESSMENT S, THEREFORE, THE OTHER GROUNDS TAKEN BY THE ASSESSEE IN ITA NO. 472/KOL/2012 AS WELL AS THE GROUNDS TAKEN BY THE REVENUE IN ITS APPEAL BEING ITA NO.601/KOL/2012 HAVE BECOME INFRUC TUOUS AND DOES NOT REQUIRE ANY ADJUDICATION. WE ACCORDINGLY ALLOW THE GROUNDS TAKE N BY THE ASSESSEE AND DISMISS THE GROUNDS TAKEN BY THE REVENUE. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AND THE APPEAL FILED BY THE REVENUE IS DISMISSED. 12 ITA NOS.2125 & 2568/K/2005 AKZO NOBEL INDIA LTD., AY 1999-2000 7.4. RESPECTFULLY FOLLOWING THE AFORESAID DECISION, WE HOLD THAT NO NOTICE U/S 143(2) OF THE ACT WAS SERVED ON THE ASSESSEE AFTER THE DATE OF FI LING THE RETURN ON 11.3.2005 AND ACCORDINGLY THE REASSESSMENT FRAMED THEREON DESERVE S TO BE QUASHED AND DECLARED VOID. HENCE THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ALLOWED. SINCE THE REASSESSMENT FOR THE ASST YEAR 1999-2000 IS CANCELLED AS VOID ABINIT IO , WE REFRAIN TO GO INTO THE OTHER GROUNDS RAISED BY THE ASSESSEE AS WELL AS BY THE RE VENUE ON MERITS OF THE CASE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO. 2125/KOL/2005 IS ALLOWED AND APPEAL OF THE REVENUE IN ITA NO. 2568/KOL/2005 IS D ISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 08.03.2017 SD/- SD/- (PARTHA SARATHI CHAUDHURY) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 8 TH MARCH, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT AKZO NOBEL INDIA LTD. (FORMERLY KNOWN A S ICI INDIA LTD.), GEETANJALI APARTMENT, 1 ST FLOOR, 8B, MIDDLETON STREET, KOLKATA- 700 071 2 RESPONDENT DCIT, CIRCLE-10, KOLKATA. 3. THE CIT(A), KOLKATA 4. 5. CIT, KOLKATA. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .