THE ACITV CENT CIR .2, V. M/S M. KANTILAL &CO LTD,

ITSSA 313/AHD/2002

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0106 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 year(s) 5 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 07-02-2014
• Assessment Year: misc
• Appeal Filed On: 28-11-2002
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T P KRISHNA KUMAR
• Assessee Lawyers: ASHWIN PARIKH
• Keywords: Income from undisclosed sources; Document seized; Principle of natural justice; Period of limitation; Question of law; Validity of assessment; Procedural lapse; Block assessment; Documents seized
• Section: 143(3); 142(1); 153A; 145; 148; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NO.306/AHD/2002 M/S. M. KANTILAL & CO. LTD., NEW AMBICA NIVAS, MOHAN NI CHAWL, VARACHHA RD., SURAT. VS. DCIT, CENTRAL CIRCLE-2, SURAT. (APPELLANT) (RESPONDENT) ITA NO.313/AHD/2002 ACIT, CENTRAL CIRCLE-2, SURAT. VS. M/S. M. KANTILAL & CO. LTD., NEW AMBICA NIVAS, MOHAN NI CHAWL, VARACHHA RD., SURAT. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI T.P. KRISHNA KUMAR, CIT-D.R. ASSESSEE(S) BY : SHRI ANIL KSHATRIYA & MR ASHWIN PARIKH. / DATE OF HEARING : 07/02/2014 /DATE OF PRONOUNCEMENT: 29/04/2014 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THESE ARE CROSS APPEALS FROM THE SIDE OF THE ASSES SEE AND FROM THE SIDE OF THE REVENUE DEPARTMENT, BOTH ARISING FROM T HE ORDER OF CIT(A)- II, AHMEDABAD, DATED 18.09.2002. FOR THE SAKE OF CO MPLETENESS GROUNDS RAISED ON MERITS BY BOTH THE SIDES ARE REPRODUCED B ELOW:- ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 2 - ASSESSEES GROUNDS OF APPEAL 1. THE CIT(APPEALS) ERRED IN HOLDING THAT THE BLOCK ASSESSMENT ORDER DATED 23.03.2001 WAS NOT BEYOND THE PERIOD OF LIMIT ATION AND WAS NOT INVALID FOR THAT REASON. 2. THE CIT(APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS.11,26,79,955/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF THE D OCUMENTS SEIZED FROM THE RESIDENCE OF SMT. LABHUBEN ZAVERBHAI PATEL 3. THE CIT(APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS.10,76,61,299/- MADE BY THE ASSESSING OFFICER AS THE ALLEGED PROFIT GENERATED OUT OF UNACCOUNTED LABOUR PAYMENT OF RS.11,12,00,785/-. 4. THE CIT(APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS.3,94,20,598/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF SEIZE D ANNEXURE LS/18 BY TAKING 18.44% PROFIT ON THE TURNOVER OF RS.21,37,77,646/- THOUGH THE SAID PRODUCTION IS RECORDED IN THE BOOKS OF M/S. R. VIPUL & CO. AND M/S. ANJANA EXPORT. 5. THE CIT(APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS.29,94,73,761/- MADE BY THE ASSESSING OFFICER BY WAY OF UNACCOUNTED PRODUCTION IS SEIZED ANNEXURE A/10 AND A/12 FOUND FROM THE RESIDENCE OF SHRI JAGDISH GOR, FAILING TO APPRECIATE THAT THE SAME RELATED TO M/S. PREMKUM AR & CO., MUMBAI AND NOT TO THE ASSESSEE. 6. THE CIT(APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS.26,96,96,060/- MADE BY THE ASSESSING OFFICER AS THE ESTIMATED UNAC COUNTED INITIAL INVESTMENT OF THE ASSESSESE AND IN FURTHER REJECTING THE CONTE NTION OF TELESCOPING THEREOF IN OTHER ADDITIONS AND THEREFORE, NOT REQUIRING A S EPARATE ADDITION EVEN IF SUCH ADDITION IS TO BE MADE. 7. THE CIT(APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS.3,94,20,598/- MADE BY WAY OF ESTIMATED UNACCOUNTED INITIAL INVEST MENT BY THE ASSESSING OFFICER ON THE BASIS OF LS/18 AND NOT GIVING THE BE NEFIT OF TELESCOPING EVEN IF SUCH ADDITION IS TO BE MADE. 8. THE CIT(APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS.3,54,87,889/- MADE BY THE ASSESSING OFFICER AS ESTIMATED UNACCOUN TED INITIAL INVESTMENT AND NOT GIVING THE BENEFIT OF TELESCOPING EVEN IF S UCH ADDITION IS TO BE MADE. 9. THE CIT(APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS.40,56,46,294/- MADE BY THE ASSESSING OFFICER BY WAY OF THE ALLEGED REMITTANCE OF CASH FROM THE HEAD OFFICE AT BOMBAY DURING THE ASST. YEARS 19 95-96 TO 1998-99. 10. THE CIT(APPEALS) ERRED IN UPHOLDING THE ADDITIO N OF RS.3,54,31,555/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF PURCHAS ES OF DIAMOND SCAIVES AND NOT GIVING THE BENEFIT OF TELESCOPING EVEN IF S UCH ADDITION IS TO BE MADE. 11. THE CIT(APPEALS) ERRED IN NOT GRANTING THE DED UCTION UNDER SECTION 80HHC(3) IN RESPECT OF THE VARIOUS ADDITIONS MADE B Y HIM. 12. THE CIT(APPEALS) ERRED IN UPHOLDING THE ADDITIO N OF RS.130,54,95,443/- FROM THE TOTAL ADDITION OF RS.25 9,22,64,020/- MADE BY THE ASSESSING OFFICER. REVENUES GROUNDS OF APPEAL 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.52,78,16,911/- MADE ON PROTECTIVE BASIS ON THE BASIS OF MATERIAL SEIZED FROM THE RESIDENCE OF SMT. LABHUBEN Z. PATEL. ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 3 - 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.35,65,37,380/- MADE ON PROTECTIVE BASIS ON THE BASIS OF MATERIAL SEIZED FROM THE RESIDENCE OF SMT. LABHUBEN Z. PATEL. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.40,24,14,286/- MADE ON(ILLEGIBLE ) UNACCOUNTED INCOME GENERATED FORM UNACCOUNTED BUSIN ESS ACTIVITY DISCUSSED IN PARA 44 OF THE ASSESSMENT ORDER. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE CIT(A) OUGHT(..ILLEGIBLE ) HAVE UPHELD THE ORDER OF THE A SSESSING OFFICER. 2. IT MAY NOT BE OUT OF PLACE TO MENTION, IN THE BE GINNING ITSELF, THAT THESE ARE VERY OLD APPEALS PENDING SINCE THE YEAR 2 002. IN THE PAST, AS PER THE NOTING OF THE ORDER SHEETS, THESE APPEALS HAVE BEEN ADJOURNED YEAR AFTER YEAR. WE HAVE ALSO NOTED THAT DUE TO NUMBER O F ADJOURNMENTS SOUGHT FROM THE SIDE OF THE ASSESSEE, IT WAS DECIDE D BY THE BENCH TO IMPOSE A COST. VIDE AN ORDER SHEET DATED 19.01.2010 A COST OF RS.5,000/-, THEREAFTER ON 11.04.2012 A COST OF RS.50,000/- AND THEN ON 04.09.2012 A COST OF RS.75,000/- HAVE ALSO BEEN IMPOSED. EARLIER , THERE WAS A REQUIREMENT OF THE BENCH TO KNOW ABOUT THE OUTCOME OF THE PROTECTIVE ASSESSMENTS AND THE IMPLICATION OF THE SUBSTANTIVE ADDITIONS. COUPLED WITH THAT ISSUE, THERE WAS AN INFORMATION THAT THE MATTER MIGHT HAVE GONE TO SETTLEMENT COMMISSION. ON ACCOUNT OF THOSE UNCER TAINTIES, THE HEARING HAD BEEN ADJOURNED TIME AND AGAIN. THEN IN THE YEAR 2008 (13 TH MARCH, 2008), THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND READS AS UNDER: THE BLOCK-ASSESSMENT ORDER IS BAD BECAUSE THE SAME IS PASSED WITHOUT GIVING SECTION 143(2) NOTICE TO THE ASSESSEE. 2.1 FOR THE ADMISSION OF ADDITIONAL GROUND A HEARING WAS GRANTED TO BOTH THE SIDES AND THEREAFTER THE SAME WAS ADMITTED BY THE BENCH VIDE AN ORDER DATED 14 TH MARCH, 2008. T HE RELEVANT EXTRACT OF THE ORDER SHEET IS REPRODUCED BELOW: IT(SS)A NO.306/AHD/2002 & IT(SS)A NO.313/AHD/2002 [BLOCK PERIOD 1989-90 TO 1998-99 & UPTO 7/1/99] ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 4 - REG : M/S. M. KANTILAL & CO. LTD., SURAT THESE CROSS APPEALS BY THE ASSESSEE AND THE REVENUE ARE SUBJECT MATTER OF EARLY HEARING AS PER ORDERS OF THE HONBL E VICE PRESIDENT ON THE REQUEST OF PARTIES. THE BENCH, AFTER CONSIDERING THE RIVAL SUBMISSIONS AND THE VARIOUS DECISIONS HAS COME TO THE CONCLUSION THAT ADDITIONA L GROUND SOUGHT TO BE RAISED, BEING MATTER OF PURE LAW AND GOES TO THE RO OT OF THE CAUSE, IS LIABLE TO BE ADMITTED AND, CONSEQUENTLY, WE ADMIT THE SAME. BOTH THE PARTIES ARE INFORMED OF THE ADMISSION OF THE AFORESAID ADDITION AL GROUND AND THE MATTER IS ADJOURNED, FOR HEARING ON MERITS OF THE ADDITIONAL GROUNDS, TO 28/03/2008. IN THE MEANTIME, THE LD. DR. IS DIRECTED TO FURNISH HI S REPLY CONFIRMING OR DENYING THE ISSUANCE AND THE SERVICE OF NOTICE U/S. 143(2) OF THE ACT UPON THE ASSESSEE ON OR BEFORE THE DATE OF COMPLETION OF BLOCK ASSES SMENT (23/03/2001) ON 28.03.2008. ADJOURNMENT TO 28.03.2008 AS PART HEARD. BENCH CLERK: TO PROVIDE THE COPY OF THIS ORDER-SHEE T TO BOTH THE PARTIES. 2.3 BECAUSE OF THE ADMISSION OF THE ADDITIONAL GROU ND, THE VEHEMENT CONTENTION OF THE APPELLANT BEFORE US IS THAT THE S AID ADDITIONAL GROUND BEING LEGAL IN NATURE CHALLENGING THE VALIDITY OF T HE ASSESSMENT, SHOULD BE DECIDED FIRST BEFORE DECIDING THE GROUNDS ON MERITS . AFTER CONSIDERING THE RIVAL SUBMISSIONS ON THIS PLEADING, WE HAVE DECIDED THAT IT IS LEGALLY CORRECT TO FIRST ADJUDICATE UPON THE IMPUGNED ADDIT IONAL GROUND. 3. FROM THE SIDE OF THE APPELLANT, LEARNED AR MR. A NIL B. KSHATRIYA & MR. ASHWIN PARIKH APPEARED. THEY HAVE INFORMED TH AT A SEARCH U/S.132 WAS CONDUCTED ON THE GROUP ON 7 TH OF JANUARY, 1999. THE SEARCH PROCEEDINGS WERE CONCLUDED ON 23 RD OF MARCH, 1999. THEREUPON, A NOTICE U/S.158BC WAS ISSUED AND SERVED ON THE ASSESSEE COM PANY ON 16.08.2000. THROUGH THE SAID NOTICE THE ASSESSEE WA S ASKED TO FILE A RETURN OF BLOCK PERIOD WITHIN 60 DAYS. ON THE REQUE ST OF THE ASSESSEE, THE SAID PERIOD WAS EXTENDED UPTO 30 TH OF SEPTEMBER, 2000. THE ASSESSEE COMPANY HAD FILED A BLOCK RETURN ON 29.09.2000 DISCLOSING THE ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 5 - UNDISCLOSED INCOME OF RS. NIL. THESE FACTS WERE NOTED BY THE AO AS PER PARAGRAPH (6) OF THE IMPUGNED ASSESSMENT ORDER PASSED U/S. 158BC(C) DATED 23 RD MARCH, 2001 . FURTHER, AS PER PARAGRAPH (7) OF THE ASSESSMENT ORDER, IT HAS ALSO BEEN NOTED BY THE AO THAT A NOTICE U/S.142(1) WAS ISSUED AND SRI ASHWIN PARIKH C.A. A TTENDED TIME TO TIME. UPTO THIS EXTENT, THERE WAS NO DISPUTE AMONG THE PA RTIES THAT A RETURN U/S.158BC WAS FILED AND THAT A NOTICE U/S.142(1) WA S ISSUED. BECAUSE THE ASSESSEE HAS RAISED S PECIFIC GROUND THAT THE ASSESSMENT ORDER WAS PASSED WITHOUT ISSUING A NOTIC E U/S.143(2) OF IT ACT, THEREFORE, VIDE AN ORDER SHEET ENTRY DATED 11 TH JUNE, 2013, IT WAS DIRECTED BY THE BENCH TO REVENUE DEPARTMENT TO PROD UCE THE EVIDENCE REGARDING ISSUANCE OF NOTICE U/S.143(2). AGAIN VIDE AN ORDER SHEET ENTRY DATED 7 TH OF AUGUST, 2013, THE REVENUE DEPARTMENT WAS DIRECT ED TO PLACE ON RECORD THE CORRECT POSITION OF THE ISSUANCE OF N OTICE U/S.143(2) OF IT ACT. FROM THE SIDE OF THE REVENUE, A LETTER HAS BEE N PLACED ON RECORD DATED 13 TH AUGUST, 2013, CONTENTS OF WHICH ARE REPRODUCED VER BATIM: I N THE ABOVE APPEAL, AT THE TIME OF HEARING ON 07-08- 2013, THE STATUS OF THE NOTICE ISSUED U/S.143(2) IN THE ABOVE CASE WAS SOUGHT FOR. 2. IT HAS NOT BEEN POSSIBLE TO TRACE THE NOTICE ISSUED IN VIEW OF THE PASSAGE OF TIME SINCE YEAR 2000. SEARCH ACTION TOOK PLACE ON 7-1-1999 AND 158BC NOTICE WAS ISSUED ON 08-6-2000. 3. IT MAY HOWEVER, BE NOTED THAT IN THIS CASE, NOTICE U/S. 142(1) WAS ADMITTEDLY SERVED ON THE ASSESSEE ON 31-08-2000 . THE ASSESSEE HAS COMPLIED WITH THIS NOTICE VIDE LETTER DATED 6-9-200 0. SUBSEQUENT TO THIS, VARIOUS CORRESPONDENCE TOOK PLACE. FURTHER THE DEFE CT IN THE BLOCK RETURN FILED WAS INTIMATED TO THE ASSESSEE AND HE WAS REQUIRED T O SHOW CAUSE AS TO WHY THE RETURN SHOULD NOT BE TREATED AS INVALID, TO WHI CH THE ASSESSEE DID NOT REPLY. THE A.O., THEREFORE, HAD NO OPTION BUT TO PR OCEED U/S.142(1), ISSUED AGAIN ON 5-11-2000. THIS COURSE OF ACTION HAS BEEN APPROVED BY THE COURTS ALSO. IN THIS REGARD, RELIANCE IS PLACED ON THE DECISION OF THE ITAT A HMEDABAD BENCH DATED 29-12-2011 IN T HE CASE OF PARTH ALUMINIUM LIMITED, IT(SS)/ A- 376/AHD/2002 FOR THE BLOCK PERIOD 1-4-88 TO 2- 8-1998, WHEREIN ON SIMILAR FACTS, THE ITAT DISMISSE D THE ASSESSEE'S APPEAL AND UPHELD THE ARGUMENTS OF THE DEPARTMENT THAT IF NOTICE U/S. 142(1) IS ISSUED IN RESPECT OF NON EST RETURNS, THEN THERE IS NO NEE D TO ISSUE NOTICE U/S.143 (2). 4. I T MAY ALSO BE NOTED THAT THE ASSESSEE HAS COMPLIED WITH THE VARIOUS OF HEARING WHICH WOULD SHOW THAT NOTICES HAVE BEEN PROPERLY SERVED AND ALSO ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 6 - COMPLIED WITH AND HENCE, THERE CANNOT BE ANY DEFICI ENCY IN SERVICE OF NOTICE. AS HELD BY KARNATAKA HIGH COURT IN Y RAJENDRA, DCIT VERSUS KHODAY EASHWAR SA & SONS, 2005, (144) TAXMAN 629 (KARNATAK A). 5. SUPPORT FOR THE ACTIONS OF THE A.O. IS ALSO TAKE N FROM THE PROVISIONS OF SECTION 292 B OF THE ACT AS THE INTENTION OF THE NO TICE SERVED IS QUITE CLEAR. 6. WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERNATIVE TO THE ABOVE ARGUMENTS, IT IS FURTHER STATED THAT IN THE CASE OF DEVENDRA G CHATURVEDI, IN IT(SS)/A-168/AHD/2006, FOR THE BLOCK PERIOD 1-4-199 9 TO 7-3-2001, THE HONBLE ITAT, AHMEDABAD, VIDE ORDER 13-1-2012, STATE D THAT ADDITIONAL GROUND REGARDING NON ISSUE OF NOTICE U/S. 143(2) HAS TO BE ADMITTED BUT WHERE THE REVENUE DID NOT 6ET OCCASION TO EXAMINE THIS ISSUE IN DETAILS, THE MATT ER IS TO BE SENT TO THE FILE OF THE CIT(APPEALS) FOR RECORDING THE R ELEVANT FACTS AND FOR PROVIDING REASONABLE OPPORTUNITY TO BE PROVID ED TO BOTH SIDES IN THE INTEREST OF NATURAL JUSTICE. SINCE FACTS REGARDING ADDITIONAL GROUNDS IS SIMILAR IN THE PRESENT CASE, IT IS ALTERNATIVELY PLEADED TH AT IF THE PLEA OF PROPER SERVICE OF NOTICE IS NOT PRIMA FACIE ACCEPTABLE, THEN THE M ATTER MAY BE SENT BACK TO THE FILE OF THE CIT(APPEALS) FOR RECORDING THE RELE VANT FACTS AND FOR PROVIDING REASONABLE OPPORTUNITY TO BOTH SIDES IN THE INTERES T OF NATURAL JUSTICE. 3.1 AGAIN ON 2 ND SEPTEMBER, 2013, LEARNED CIT-DR HAS FILED A LETTER BEFORE US AND THE SAME IS EXTRACTED BELOW: I AM SUBMITTING ALONGWITH THE LETTER DATED 24.06.20 13 RECEIVED FROM ASSESSING OFFICER (A.O.) IN RELATION TO THE REQUEST FOR COPY OF 143(2) NOTICE IN THIS CASE, AS DIRECTED BY MEMBERS AT THE TIME OF AP PEAL HEARING ON 13.08.2013. 2. AS MAY BE SEEN, THIS CASE HAD UNDERGONE CHANGE O F JURISDICTION IN TERMS OF DECENTRALIZATION OF CASE PURSUANT TO COMPL ETION OF BLOCK ASSESSMENT. AS SUCH, THE MATTER OF AVAILABILITY OF NOTICE U/S.1 43(2) HAD BEEN TAKEN UP BY THE PRESENT AO WITH THE ERSTWHILE ASSESSING OFFICER DEPUTY CIT, CENTRAL CIRCLE-2, SURAT, AND NOTHING HAS BEEN HEARD FROM TH IS OFFICE, AS OF NOW, AS IS EVIDENT FROM THE PENULTIMATE PARA OF THE PRESENT AS SESSING OFFICERS LETTER. 3. IN VIEW OF THE PASSAGE OF TIME AND DELAY SO FAR, I HAVE REQUESTED THE JURISDICTIONAL COMMISSIONER OF INCOME TAX TO URGENT LY DEPUTE AN OFFICIAL FOR TRACING OUT THE RELEVANT DOCUMENTS. 3.2 FROM THE ABOVE CORRESPONDENCE ONE THING FOR SUR E EMERGES THAT THE ITAT BENCH HAD GIVEN DUE OPPORTUNITY TO THE REVENUE DEPARTMENT TO PLACE ON RECORD THE CORRECT POSITION ABOUT THE EXIS TENCE AS ALSO THE SERVICE OF NOTICE U/S 143(2) OF THE ACT. BUT NO SPE CIFIC/ COGENT EVIDENCE HAD BEEN PRODUCED. RATHER THE DEPARTMENT HAD FAILED TO PLACE ON RECORD THE EXISTENCE OF THE IMPUGNED NOTICE. THE DEFENSE O F LEARNED DR WAS ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 7 - THAT THE ASSESSEE HAD OTHERWISE BEEN GRANTED OPPORT UNITY OF HEARING AS REQUIRED U/S.143(2) OF IT ACT; HENCE, EVEN IN THE A BSENCE OF THE SAID SPECIFIC NOTICE THE PURPOSE OF GRANTING OPPORTUNITY OF HEARING WAS TAKEN CARE BY ISSUING LETTER TO THE ASSESSEE. THE ASSESSE E SHOULD NOT NOW CHALLENGE THE VALIDITY OF THE ASSESSMENT ON THE GRO UND THAT DUE TO NON ISSUANCE OF NOTICE U/S.143(2) HE WAS DENIED THE OPP ORTUNITY OF HEARING. THE SAID LETTER OF THE AO ISSUED TO THE DIRECTOR OF THE COMP ANY DATED 31 ST OCTOBER, 2000 IS ALSO PLACED BEFORE US, RELEVANT PORTION EXTRACTE D BELOW: TO: SHRI MANJIBHAI M. PATEL DIRECTOR M/S. M. KANTILAL & CO. LTD., NEW AMBICA NIVERS, MOHAN NI CHAL, VARACCHA ROAD, SURAT. SUB: SHOW CAUSE NOTICE FOR WRONG VERIFICATION OF BLOCK SEARCH RETURN OF INCOME REGARDING PLEASE REFER TO THE ABOVE. 2. IN RESPONSE TO THE NOTICE U/S.158BC OF THE IT AC T, YOU HAVE FILED THE BLOCK RETURN OF INCOME ON 29.9.2000 DISCLOSING A TO TAL UNDISCLOSED INCOME OF RS.NIL. ALONG WITH THE RETURN OF INCOME, THERE IS AN ENCLOSURE WITH THREE NOTINGS. THIRD NOTING READS AS THE INCOME DISCLOSED IN THE SETTLEMENT APPLICATION SHALL BE TREATED AS FILED IN THE RETURN OF UNDISCLOSED INCOME IN FOR M NO.2B, IN CASE THE APPLICATION FOR SETTLEMENT IS REJECTED. FOR THIS PU RPOSE, THE ASSESSEE SHOULD BE ALLOWED TO REVISE THE RETURN OF UNDISCLOS ED INCOME. THE RETURN OF UNDISCLOSED INCOME NOW FILED IS ONLY FOR THE PURPOSE OF COMPLYING THE NOTICE U/S.158BC OF THE ACT. 3. FROM THE ABOVE NOTINGS, IT IS CLEAR THAT YOU ADM IT UNDISCLOSED INCOME FOR THE BLOCK PERIOD. IN SPITE OF THIS NIL RETURN OF INCOME FOR THE BLOCK PERIOD IS FILED. PLEASE NOTE THAT UNDER THE HEAD V ERIFICATION IN THE BLOCK RETURN OF INCOME, YOU HAVE MADE DECLARATION THAT TH E AMOUNT OF TOTAL INCOME INCLUDING UNDISCLOSED INCOME AND OTHER PARTICULARS SHOWN THEREIN ARE TRULY STATED MEANING THEREBY THE UNDISCLOSED INCOME FOR T HE BLOCK PERIOD IS FULL TRUE. ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 8 - PLEASE ALSO NOTE THAT THERE IS NO PROVISION IN THE IT ACT FOR FILING OF REVISED BLOCK RETURN OF INCOME. 4. HOWEVER, FROM THE ENCLOSED PAPER WITH NOTINGS, I T IS CLEAR THAT THERE IS UNDISCLOSED INCOME RELATED TO THE BLOCK PERIOD. UND ER THIS CIRCUMSTANCES, YOUR VERIFICATION IS INCORRECT AND WRONG. THEREFORE , IT CANNOT BE CONSIDERED AND WRONG. THEREFORE, IT CANNOT BE CONSIDERED AS FI LED IN RESPONSE TO THE NOTICE U/S. 158 BC OF THE ACT. FURTHER, YOU ARE LIA BLE FOR PROSECUTION AS PER LAW FOR THE NON-COMPLIANCE. 5. IN THIS REGARD, YOU ARE REQUESTED TO SHOW CAUSE A S TO WHY (I) YOUR RETURN OF INCOME FILED IN FORM 2B SHOULD NOT B E TREATED AS INVALID. (II) NECESSARY PROSECUTION PROCEEDINGS SHOULD NOT BE INI TIATED AGAINST YOU. 6. YOU ARE FURTHER DIRECTED TO PAY THE TAX ON THE UNDI SCLOSED INCOME FOR THE BLOCK PERIOD DETERMINED BY YOU IMMEDIATELY AND PRODUCE THE PROOF OF PAYMENT FOR VERIFICATION OF THE UNDERSIGNED. NO FURTHER DELAY SHOULD BE MADE IN THIS REGARD. 7. PLEASE NOTE THAT THE REPLY TO THE SHOW CAUSE MUST B E PRODUCED BEFORE THE UNDERSIGNED WITHIN SEVEN DAYS OF RECEIPT OF THI S NOTICE. IF NO REPLY IS RECEIVED FROM YOUR SIDE, WITHIN SEVEN DAYS OF RE CEIPT OF THIS NOTICE, FURTHER PROCEEDINGS WILL BE INIATED AGAINST YOU WIT HOUT GIVING ANY FURTHER OPPORTUNITIES. EXPECTING COOPERATION FROM YOUR SIDE. (ANAND MOHAN) DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2, SURAT. 3.3. ALTHOUGH THIS LETTER WAS ISSUED BY THE DEPARTM ENT BUT FROM THE SIDE OF THE APPELLANT, BEFORE US, A SERIOUS QUESTIO N HAS BEEN RAISED THAT WHETHER IT COULD BE AKIN/ ANALOGOUS TO A NOTICE U/S 143(2). ACCORDING TO LD A.R., ARGUING THIS APPEAL, THE SAID LETTER WAS N OTHING BUT A WARNING OF PROSECUTION FOR NOT DISCLOSING UNDISCLOSED INCOME. 3.3.1 RATHER LD A.R. HAS DRAWN OUR ATTENTION ON AN ANOTHER LETTER RECEIVED FROM LD D.R. FILED IN THE COURSE OF HEARIN G BEFORE THE BENCH. IT IS, THEREFORE, WORTH TO REPRODUCE THE CONTENTS O F THE SAID LETTER OF ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 9 - INCOME TAX OFFICER, WARD-1(4), SURAT DATED 24 JUNE, 2013, WHEREIN THE NON-AVAILABILITY OF THE NOTICE U/S.143(2) WAS A LSO ADMITTED BUT IT WAS ALSO MENTIONED THAT WITHIN THE DEPARTMENT CERTA IN CORRESPONDENCE WAS GOING ON BECAUSE THE FILE OF THE ASSESSEE WAS T RANSFERRED THREE TIME FROM ONE OFFICE TO ANOTHER OFFICER. ALTHOUGH, IT IS A LONG REPLY BUT TO APPRECIATE THE CORRECT FACTUAL POSITION, EMERGING F ROM THE RECORD OF THE REVENUE DEPARTMENT, IT IS REQUIRED, AS ALSO ESSENTI AL, TO REPRODUCE HEREINBELOW: (SUBMITTED THROUGH THE ADDL. COMMISSIONER OF INCOM E TAX, RANGE-1, SURAT) SIR, SUB: - APPEAL HEARING IN THE CASE OF M/S. M. KANTIL AL & CO. LTD., IN IT(SS) A-306 & 313/AHD/2002 BEFORE 'C' BENCH-SUBMIS SION OF REPORT- REG. REF :- THE CCIT SURAT'S LETTER NO.SRT/CCIT/ITO(OSD) / M. KANTILAL & CO./2013-14 DATED 14.06.2013 ADDRESSED TO THE CIT -I, SURAT AND COPY ENDORSED TO THIS OFFICE. KINDLY REFER TO THE ABOVE, 2. THE CASE OF M/S. M. KANTILAL & CO. LTD., WAS REC EIVED BY THIS WARD AFTER DECENTRALIZATION OF CASE VIDE ORDER DATED 22.05.200 8 UNDER SECTION 127(2) OF THE ACT. THE DEMAND OF RS. 15553.38 LAKHS WAS RAISE D ON 23.03.2001. THEREAFTER, THE LD. CIT(APPEAL)-II, AHMEDABAD HAS D ECIDED THE FIRST APPEAL AND HAS PARTLY DELETED THE ADDITION. 3. THE ASSESSEE COMPANY VIDE ITS LETTER DATED 13.03 .2008 FILED ADDITIONAL GROUND OF APPEAL BEFORE THE HON'BLE ITAT AHMEDABAD 'C' BENCH, THAT THE BLOCK ASSESSMENT ORDER IS BAD BECAUSE THEM SAME IS PASSED WITHOUT GIVING SECTION 143(2) NOTICE. 4. THE HON'BLE ITAT HAS ADMITTED THE ADDITIONAL GROUND OF APPEAL VIDE ORDER SHEET ENTRY DATED 14.03.2008 AND BOTH THE PARTIES WERE INFORMED OF THE ADMISSION OF ADDITIONAL GROUND AND MATTER WAS ADJOU RNED FOR HEARING ON MERIT OF ADDITIONAL GROUND TO 28.03.2008. IN THE ME ANTIME, THE LD. D.R. WAS DIRECTED TO FURNISH HIS REPLY CONFIRMING OR DENYING THE ISSUANCE AND SERVICE OF NOTICE U/S. 143(2) OF THE ACT UPON THE ASSESSEE ON OR BEFORE THE DATE OF COMPLETION OF BLOCK ASSESSMENT (23.03.2001) ON 23.0 3.2008. 5. THE CIT (ITAT)-III,.VIDE HIS LETTER DATED 25.03. 2008 ADDRESSED TO THE ADD. CIT, CENTRAL RANGE, SURAT, STATED THAT NOTICE U/S. 158BC WAS ISSUED IN THIS CASE ON 16.08.2000. RETURN FOR THE UNDISCLOSED INCO ME FOR THE BLOCK PERIOD WAS FURNISHED BY THE ASSESSEE ON 29.09.2000 DECLARI NG UNDISCLOSED INCOME AT RS. NIL. FROM THE ASSESSMENT ORDER IT IS NOT BORNE OUT AS TO WHETHER NOTICE UNDER SECTION 143(2) WAS ISSUED OR NOT. THEREFORE, REQUESTED TO DIRECT THE ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 10 - ASSESSING OFFICER CONCERNED TO LET THEM KNOW BY FAX AS TO WHETHER NOTICE UNDER SECTION 143(2) WAS ISSUED AND SERVED ON THE ASSESSEE AFTER FILING OF THE RETURN OF UNDISCLOSED INCOME FOR BLOCK PERIOD OR AN Y TIME BEFORE THE DATE OF PASSING OF THE ASSESSMENT ORDER. IF NOT, THE REASON THEREOF. 6. THE DY. CIT, CENTRAL CIRCLE-2, SURAT, VIDE LETTE R NO. SRT/DCIT/CC-2/M. KANTILAL. & CO/07-08 DATED 27TH MARCH 2008 ADDRESSE D TO THE CIT(ITAT)-III, AHMEDABAD STATED THAT THE-MATTER RELATES TO THE F.Y . 2000-01 AND ALL RELEVANT RECORDS NOW STAND SHIFTED TO THE RECORDS ROOM. HE H AS ONLY ONE CLERK AT THE DISPOSAL WHO WAS ON LEAVE. SINCE THE MATTER IS VERY OLD AND SENSITIVE ONE, IT IS MANDATORY ON THE PART OF THE DY. CIT TO MINUTELY VE RIFY EACH AND EVERY DOCUMENT BEFORE REPORTING THE MATTER. IN VIEW OF TH E ABOVE FACT AND CIRCUMSTANCES, HE HAD REQUESTED THE HON'BLE ITAT TO GRANT A TIME OF ATLEAST 15 DAYS IN ORDER TO VERIFY THE RECORDS AND FURNISH THE REQUIRED REPORT. 7. THE THEN I.T.O. WARD-1 (4) SURAT HAD WRITTEN A L ETTER DATED 22.08.2008 TO THE DY. CIT CENTRAL CIRCLE-2, SURAT AS UNDER: 'WHILE REPLYING TO THE LETTER OF THE CIT(ITAT)-III, AHMEDABAD, VIDE YOUR LETTER DATED 27.03.2008 YOU HAD SOUGHT FOR 15 DAYS TIME FO R SUBMISSION OF THE REPORT TO THE CIT(ITAT)-III, AHMEDABAD. ON VERIFICATION OF THE CASE RECORDS OF THE ABOVE AS SESSEE RECEIVED ON TRANSFER FROM YOUR OFFICE IN THE MONTH OF JUNE 2008 AND RELE VANT TRANSFER MEMO, IT IS NOT ASCERTAINED WHETHER REQUIRED REPORT HAS BEEN SE NT TO THE CIT (ITAT)-III, AHMEDABAD OR NOT. IT IS NOWHERE MENTIONED IN THE TR ANSFER MEMO THAT ANY REPORT IS PENDING TO THE CIT(ITAT)-III, AHMEDABAD. THE CIT(ITAT)-III, AHMEDABAD, VIDE HIS LETTER DATED 14.08.2008 HAS NOW AGAIN CALLED FOR THE SAID REPORT LATEST BY 28.08.2008. IT IS THEREFORE, REQUESTED TO KINDLY LET THE UNDER SIGNED KNOW, WHETHER, ANY FOLDER/FILE IS LEFT IN YOUR OFFICE CONTAINING CORRE SPONDENCE IN THIS REGARD. ON SCRUTINY OF ALL THE FOLDERS TRANSFERRED TO THIS OFF ICE, NOTICE U/S. 143(2) OF THE ACT, AS REFERRED TO IN THE LETTER OF THE CIT(ITAT)- III, AHMEDABAD IS NOT FOUND TO HAVE BEEN ISSUED BY THE THEN ASSESSING OFF ICER. IT IS ALSO REQUESTED TO KINDLY INTIMATE WHETHER THE SAID NOTICE IS KEPT IN SOME OTHER FOLDER/FILE LYING IN YOUR OFFICE.' 8. THE THEN ITO WARD-1 (4), SURAT, VIDE LETTER NO. ITO/WD. 1 (4)/M.K./08-09 DATED 27.08.2008 WRITTEN TO THE CIT(ITAT)-III, AHME DABAD THAT ON VERIFICATION OF ALL NINE FOLDERS RECEIVED BY THIS O FFICE FROM THE DY. CIT-CC-2, SURAT, COPY OF NOTICE U/S. 143(2) OF THE ACT FOR THE BLOCK PERIOD IS NOT FOUND ON RECORD. 9. A LETTER WAS WRITTEN TO THE ADD. CIT(LNV), SURA T ON 22.08.2008 ALONGWITH COPY OF YOUR LETTER DATED 12.10.2007 ADDRESSED TO T HE CIT, CENTRAL-1, AHMEDABAD, REQUESTING HIM TO ARRANGE FOR COPIES OF DOCUMENTS MENTIONED THEREIN. HOWEVER, THE COPIES OF THE SAID DOCUMENTS ARE NOT RECEIVED TILL DATE. SINCE THE SEARCH FOLDER OF THE ASSESSEE HAS NOT BEE N TRANSFERRED ALONGWITH CASE RECORDS, THE DY. CIT, CENTRAL CIR-2, WAS REQUE STED VIDE THIS OFFICE LETTER DATED' 22.08.2008 TO SUPPLY COPY OF NOTICE U/S. 143 (2) ISSUED IF ANY FOR THE BLOCK PERIOD AND COPIES OF DOCUMENTS AS MENTIONED I N YOUR LETTER REFERRED TO ABOVE. ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 11 - 10. FURTHER, THE THEN ITO, WARD-1 (4), SURAT, V IDE HIS LETTER DATED 30.12.2010 FURNISHED THE INFORMATION CALLED FOR BY THE CIT-I, SURAT IN PARA (B) AS UNDER: (B) QUANTUM OF REVENUE INVOLVED OUT OF AFORESAID IN CASE WHERE THE NOTICE U/S. 143(2) HAS NOT BEEN ISSUED. IN THIS REGARD, IT IS SUBMITTED THAT NOTICE U/S.143 (2) OF THE IT ACT, IS NOT AVAILABLE ON RECORD. THE THEN AO HAD WRITTEN A LETTER TO THE DY. CIT, CENTRAL CIRCLE-2, SURAT REQUESTING HIM TO FURNISH T HE DETAILS REGARDING THE NOTICE U/S.143(2) OF THE ACT. NOTHING IS HEARD FROM THE CENTRAL CIRCLE-2, SURAT IN THIS MATTER TILL DATE. IN VIEW OF THE ABOVE FACT/CORRESPONDENCE, NOTICE UN DER SECTION 143(2) OF THE ACT IS NOT AVAILABLE ON RECORD OF THI S OFFICE. 3.3.2 THEREFORE LD A.R. HAS VEHEMENTLY ARGUED THAT IN THE LIGHT OF THE ABOVE CORRESPONDENCE IT HAS NOW ABUNDANTLY CLEAR TH AT THE REVENUE HAS MISERABLY FAILED TO PLACE BEFORE THE HONBLE BENCH A NY EVIDENCE TO PROVE THE ISSUANCE OF NOTICE U/S 143(2). HE HAS THUS REIT ERATED THAT DUE THIS VERY REASON THE ASSESSEE HAS CHALLENGED THE VALIDIT Y OF THE IMPUGNED ORDER. 4. FURTHER, FROM THE SIDE OF THE ASSESSEE, IT WAS P LACED ON RECORD THAT UNDER RIGHT TO INFORMATION ACT, 2005 THE ASSESSEE HAS SOUGHT AN INFORMATION FROM THE REVENUE DEPARTMENT ASKING TO G IVE A COPY OF THE NOTICE U/S.143(2) OF IT ACT WHETHER ISSUED FOR THE BLOCK PERIOD (A.Y. 1989-90 TO A.Y.1998-99 & UPTO 07.01.1999). IN RESPO NSE TO THE SAID RTI APPLICATION THE REVENUE DEPARTMENT HAS GIVEN THE IN FORMATION VIDE A LETTER DATED 27 TH OF JUNE, 2012 AS UNDER: TO, THE PRINCIPAL OFFICER, M/S. M. KANTILAL & CO. LTD., 251, SHREE AMBICA, OPP. RAJHANS POINT, VARACHHA ROAD, SURAT 395006 ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 12 - SIR, SUB: RIGHT TO INFORMATION ACT, 2005 - FURNISHING OF INFORMATION - REG. PLEASE REFER TO YOUR APPLICATION DATED 12.6.2012 UN DER THE RTI ACT, SEEKING COPY OF NOTICE U/S. 143(2) OF THE I.T. ACT, 1961 ISSUED FOR BLOCK PERIOD 1989-90 TO 1998-99 AND UPTO 7.1.1999. 2. IN THIS CONNECTION, A COPY OF NOTICE U/S. 143(2) OF THE INCOME-TAX ACT, 1961 ISSUED 23.3.2001 AND SERVED UPON THE ASSESSEE ON 23.3.2001 FOR BLOCK PERIOD 1989-90 TO 1993-94 IS ENCLOSED HEREWIT H. 3. IF YOU ARE NOT SATISFIED WITH THIS REPLY, YOU CA N FILE APPEAL BEFORE THE ADDITIONAL COMMISSIONER OF INCOME-TAX, RANGE-1, ROO M NO. 101, AAYKAR BHAVAN, SURAT 395001. ENCL : AS ABOVE YOURS FAITHFULLY, (K.M.PKAJAPATI) INCOME-TAX OFFICER, WARD -1 (4), SURAT. 4.1 THE REVENUE DEPARTMENT HAS ALSO FURNISHED A PHO TO COPY OF A NOTICE U/S.143(2) OF IT ACT DATED 23 RD OF MARCH, 2001. HOWEVER LD A.R. HAS INFORMED THAT THE ALLEGED NOTICE WAS NOT IN THE NAME OF THE ASSESSEE I.E. M/S M.KANTILAL & CO LTD.( A COMPANY), BUT IT W AS ISSUED IN THE NAME OF M/S. M. KANTILAL & CO ( A FIRM). 4.2 THEREFORE, LEARNED AR HAS STRONGLY OBJECTED ABO UT THE SAID INFORMATION ON THE GROUND THAT THE SAID INFORMATION WAS NOT CONNECTED WITH THE PRESENT CASE. THE PRESENT CASE IS THE CASE OF PRIVATE LIMITED COMPANY TITLED AS M/S. M. KANTILAL & CO. LTD.. HO WEVER, THE REFERRED NOTICE WAS IN THE NAME OF M/S. M. KANTILAL & CO. LE ARNED AR HAS ALSO PLACED ON RECORD THE ASSESSMENT ORDER OF A REGISTER ED FIRM, IN THE NAME ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 13 - OF M/S. KANTILAL & CO. ON WHICH AN ASSESSMENT WAS M ADE U/S.158BC(C) OF IT ACT DATED 30 TH OF MARCH, 2001. THE SAID FIRM WAS ASSESSED AFTER ISSUANCE OF NOTICES U/S.143(2)/142(1). THE FACT ABO UT THE ISSUANCE OF THOSE NOTICES WERE ALSO DULY MENTIONED IN PARA 6 OF THE ORDER OF THE FIRM, FOR READY REFERENCE REPRODUCED BELOW: 6. NOTICES U/S.143(2) (142)(1) AND A LETTER DATED 27.03.2001 WERE ISSUED. IN RESPONSE TO NOTICES U/S.142(1) 143(2), SHRI MEHT A KOTHARI, C.A., ALONGWITH SHRI ASHWIN PAREKH, C.A. AND SHRI PRAVINBHAI. SR. P ARTNER, ATTENDED AND DISCUSSED THE CASE AND THE SEIZED MATERIALS WITH TH EM. THEY HAVE ALSO SUBMITTED WRITTEN SUBMISSION ON THE CONTENTS OF THE SEIZED DOCUMENTS VIDE LETTER DATED 28.03.2001. 4.3 THEREFORE, THE FIRST ARGUMENT OF LEARNED AR BEF ORE US IS THAT THE IMPUGNED ASSESSMENT ORDER OF THE ASSESSEE, NOW UNDER APPEAL, BEING DATED 23 RD OF MARCH, 2001 , WAS PASSED WITHOUT ISSUING ANY NOTICE U/S.143(2) OF IT ACT, AS IT IS NOW ADMITTED BY THE REVENUE DEPARTMENT THROUGH VARIOUS LETTERS. BUT SIMULTANEOUSLY DURING THAT PERIOD IN THE CASE OF THE FIRM THE ASSESSMENT WAS COMPLETED ON 30 TH OF MARCH, 2001 BUT ONLY AFTER ISSUING A NOTICE U/S.143(2) OF IT ACT. H E HAS ALSO POINTED OUT THAT THE INFORMATION GIVEN IN RESPECT OF A NOTICE U /S.143(2) WAS THE NOTICE ISSUED IN THE CASE OF THE FIRM DATED 23 RD OF MARCH, 2001 DIRECTING THE ASSESSEE TO ATTEND THE OFFICE ON 27 TH OF MARCH, 2001. THE REFERENCE OF THE SAID NOTICE WAS ALSO MADE AVAILABLE ON PARAGRAPH 6 OF THE ORDER OF THE FIRM DATED 30 TH OF MARCH, 2001, ALREADY EXTRACTED ABOVE. AT THIS JUNCTURE, IT IS THEREFORE IMPERATIVE TO COMMENT THA T THE INFORMATION GIVEN UNDER RTI ACT DID NOT RELATE TO THE ASSESSEE COMPANY BUT IT WAS RELATED TO THE FIRM. THAT OBSERVATION WAS ALSO COMMUNICATED TO THE REVENUE DEPARTMENT HOWEVER NO SATISFACTORY REPLY WA S SUBMITTED TO THE BENCH. ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 14 - 4.4 AN ANOTHER FACT HAS ALSO BEEN BROUGHT TO OUR NO TICE THAT THE AO HAS REFERRED IN PARAGRAPH (7) ABOUT A NOTICE ISSUE U/S.142(1) OF IT ACT . THAT NOTICE WAS IN FACT DATED 31 ST OF AUGUST, 2000. THAT NOTICE WAS ISSUED PRIOR TO THE FILING OF THE BLOCK RETURN. UNDISPUTED LY THE BLOCK PERIOD RETURN WAS FILED ON 29.09.2000. SO THE ARGUMENT BEF ORE US IS THAT THE IMPUGNED NOTICE U/S.142(1) DATED 31.08.2000 BEING P RIOR TO THE FILING OF THE RETURN, WHICH WAS FILED ON 29.09.2000, WAS ITSE LF A NONEST NOTICE HAVING NO RELEVANCE IN THE EYES OF LAW. THROUGH THI S NOTICE U/S.142(1), THE CONCERNED DCIT CENTRAL CIRCLE-2, SURAT HAS DIRE CTED THE ASSESSEE TO FURNISH THE REQUISITE INFORMATION ON OR BEFORE 19.0 9.2000. SO THE ASSESSEES ARGUMENT IS THAT AFTER THE SEARCH U/S.13 2 DATED 07.01.1999 A GENERAL NOTICE U/S.142(1) DATED 31 ST AUGUST, 2000 WAS ISSUED BUT IT WAS NOT ISSUED AFTER CONSIDERING THE BLOCK RETURN FILED BY THE ASSESSEE ON 29.09.2000. RATHER IT WAS MENTIONED IN THE SAID NOT ICE U/S. 142(1) THAT THE INFORMATION WAS CALLED FOR U/S.142(1) TO FURNIS H EVIDENCES AND PROOF ON OR BEFORE 19.09.2000. 5. OUR ATTENTION HAS FURTHER BEEN DRAWN ON A LETTER ISSUED BY THE ASSESSEE COMPANY TO DCIT CIRCLE-2, SURAT DATED 07.1 1.2000, WHEREIN THERE WAS A REFERENCE OF THE SAID NOTICE U/S.142(1) DATED 31.08.2000. IN THE LAST PARAGRAPH IT WAS MENTIONED BY THE ASSESSEE THAT THE REPLY TO THE NOTICE U/S.142(1) WAS UNDER PROTEST AND WITH AN OBJ ECTION OF VALIDITY OF THE ASSESSMENT AS NO NOTICE U/S.143(2) OF THE ACT W AS ISSUED. THE ASSESSEE HAS FURTHER INFORMED THE CONCERNED OFFICER , QUOTE ACCORDING TO ASSESSEE EVEN IN BLOCK ASSESSMENT U/S.158BC OF T HE ACT THE NOTICE U/S. 143(2) IS REQUIRED TO BE ISSUED. WE SHALL SUBM IT ALL EXPLANATION IN THE ABSENCE OF NOTICE U/S.143(2) OF THE ACT UNDER P ROTEST UNQUOTE. ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 15 - FOR READY REFERENCE THE REPLY OF THE ASSESSEE DATED 07.11.2000 IS REPRODUCED BELOW: 1. THE ASSESSEE HAD RECEIVED A NOTICE DTD. 31.08.2 000 U/S. 142(1) OF THE ACT IN THE ABSENCE OF ANY RETURN OF UNDISCLOSED INC OME. THE ASSESSEE THEREFORE INTIMATED YOUR HONOUR TO ISSUE A NOTICE U /S. 158BC AND THEREAFTER A NOTICE U/S.143(2) OF THE ACT TO CORRECTLY ASSESSEE THE UNDISCLOSED INCOME. 2. YOUR HONOUR ISSUED A NOTICE U/S.158BC OF THE ACT DTD 17.08.2000 TO FILE THE RETURN OF UNDISCLOSED INCOME BY 16.09.2000 . YOUR HONOUR VIDE LETTER DTD. 08.09.2000 ALLOWED EXTENSION TO FILE RETURN OF UNDISCLOSED INCOME BY 30.09.2000. THE ASSESSEE FILED RETURN OF UNDISCLOSE D INCOME ON 29.09.2000. 3. THE THIRD NOTE TO RETURN OF UNDISCLOSED INCOME H AS BEEN WRITTEN BECAUSE YOUR HONOUR ISSUED NOTICE U/S.158BC OF THE ACT AND REQUIRED THE ASSESSEE TO FILE RETURN OF UNDISCLOSED INCOME WITHO UT GIVING PHOTO COPIES OF SEIZED MATERIAL. IN THIS ABSENCE OF COPIES OF SEIZE D MATERIAL THE ASSESSEE FILED RETURN OF UNDISCLOSED INCOME AT RS. NIL. AFTER RECE IPT OF PHOTO COPIES OF SEIZED MATERIAL IF ASSESSEE IS REQUIRED TO OFFER AN Y APPROACH INCOME-TAX SETTLEMENT COMMISSION AS RETURN OF UNDISCLOSED INCO ME HAS ALREADY BEEN FILED, SO THAT NO PENALTY U/S.158DFA(2) IS LEVIED. 4. KINDLY, THEREFORE, TREAT THE RETURN OF UNDISCLOS ED INCOME FILED ON 29.09.2000 AS A VALID RETURN. THE PROSECUTION PROCE EDINGS PROPOSED IN THE NOTICE SHOULD THEREFORE BE DROPPED. 5. THE ASSESSEE REQUEST YOUR HONOUR TO ISSUE A NOTICE U/S.143(2) OF THE ACT TO COMMENCE ASSESSMENT PROCEEDINGS . YOUR HONOUR HAS COMMENDED ASSESSMENT PROCEEDINGS VIDE NOTICE U/S.142(1) OF TH E ACT ISSUED ON 31.08.2000 WHICH IS NOT VALID. THE ASSESSEE SHALL SUBMIT REPLY TO NOTICE U/S.142( 1) OF THE ACT DTD. 31.08.2000 UNDER PROTEST AND WITH AN OBJEC TION OF VALIDITY OF ASSESSMENT IF NO NOTICE U/S.143(2) OF THE ACT IS IS SUED. ACCORDING TO ASSESSEE EVEN IN BLOCK ASSESSMENT U/S. 158BC OF THE ACT THE NOTICE U/S.143(2) IS REQUIRED TO BE ISSUED. WE SHALL SUBMIT ALL EXPLANAT ION IN THE ABSENCE OF NOTICE U/S.143(2) OF THE ACT UNDER PROTEST. 6. FROM THE SIDE OF THE APPELLANT A STRONG EMPHASIS WAS GIVEN ON THE LINES OF THE ABOVE REPLY, REPEATED FOR THE SAKE OF EMPHASIS, THAT THE ASSESSEE SHALL SUBMIT REPLY OF NOTICE U/S.142 OF TH E ACT DATED 31.08.2000 UNDER PROTEST. THEN CLEARLY AN OBJECTION WAS RAISE D ABOUT THE VALIDITY OF THE ASSESSMENT, AS NO NOTICE U/S.143(2) WAS ISSUED. ACCORDING TO ASSESSEE EVEN IN BLOCK ASSESSMENT U/S.158BC OF THE ACT A NOT ICE U/S. 1432(2) WAS REQUIRED TO BE ISSUED. ALTHOUGH A REPLY WAS FURNISH ED BUT UNDER PROTEST. ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 16 - 6.1 FROM THE SIDE OF APPELLANT, LEARNED AR, MR. ANI L KSHATRIYA HAS PLACED ON RECORD A WRITTEN SUBMISSION TO COVER UP T HE FACTUAL AS WELL AS THE LEGAL ASPECT OF THE ISSUE. RELEVANT PORTION IS EXTRACTED BELOW: 1. AT THE TIME OF HEARING ON 11-06-2013, 07.08.201 3 & 13.08.2013 THE BENCH HAS SPECIFICALLY DIRECTED THE CIT DR TO FURNI SH THE REPLY EITHER CONFIRMING OR DENYING THE ISSUANCE AND THE SERVICE OF NOTICE U/S.143(2) OF THE ACT UPON THE ASSESSEE ON OR BEFORE THE DATE OF COMPLETION OF BLOCK ASSESSMENT I.E. 23-03-2011. THE DIRECTIONS TO THIS EFFECT WERE ISSUED IN THE ORDER PASSED BY THE HONORABLE BENCH ON 14-03-2008 W HILE ADMITTING THE ADDITIONAL GROUND. 2. IN RESPONSE TO THE ABOVE SAID DIRECTIONS OF THE HONORABLE BENCH, IT HAS BEEN CATEGORICALLY AND SPECIFICALLY ADMITTED BY THE REVENUE BY FILING SUBMISSIONS DATED 13-08-2013 THAT IT IS NOT POSSIBL E TO TRACE THE NOTICE ISSUED. IN VIEW OF THE PRESENT REPLY FILED ON 13-08-2013 TH AT IT IS NOT POSSIBLE TO TRACE THE NOTICE ISSUED, THE SAME TANTAMOUNTS TO THE DENI AL OF ISSUANCE & SERVICE OF SUCH NOTICE TO THE ASSESSEE. 3. THE PROVISIONS OF SECTION 142(1) OF THE ACT READS AS UNDER.- 'FOR THE PURPOSE OF MAKING AN ASSESSMENT UNDER THIS ACT, THE 1[ASSESSING] OFFICER MAY SERVE ON ANY PERSON WHO HAS MADE A RETU RN UNDER SECTION 139 2 [OR IN WHOSE CASE THE TIME ALLOWED UNDER SUB- SECTI ON (1) OF THAT SECTION FOR FURNISHING THE RETURN HAS EXPIRED] A NOTICE REQUIRI NG HIM, ON A DATE TO BE THEREIN SPECIFIED THE SECTION ITSELF CONTEMPLATES THAT SUCH NOTICE CA N ONLY BE ISSUED ON THE PERSON IF; 1) HAS MADE A RETURN OR 2)THE TIME LIMIT ALLOWED FOR FURNISHING SUCH RETURN HAS E XPIRED. THE FACTS OF THE APPELLANT'S CASE ARE THAT 1) FIRSTLY A NOTICE U/S.158BC DATED 17-08-2000 WAS ISSUED. 2) THE TIME LIMIT TO FILE THE RETURN WAS EXTENDED B Y THE A.O. UPTO 30-09- 2000 VIDE HIS LETTER DATED 08-09-2000 IS SUED IN RESPONSE TO ASSESSEE'S REQUEST LETTER DATED 06-09-2000 FILED ON 07-09-2000. 3) THE RETURN OF INCOME WAS FILED ON 29-09-2000. THE SAID FACTS ARE EVIDENT FROM PARAGRAPH 6 OF THE ASSESSMENT ORDER DATED 23-03-2001 WHEREIN IT HAD BEEN STATED THAT:- 'A NOTICE U/S.158 BC OF THE IT ACT IS ISSUED AND PR OPERLY SERVED ON THE ASSESSEE COMPANY ON 16-08-2000 TO FILE BLOCK RETURN OF INCOME WITHIN SIXTEEN DAYS. ON THE REQUEST OF THE ASSESSEE COMPANY, THE P ERIOD IS EXTENDED UPTO 30- 09-2000. THE ASSESSEE COMPANY FILED BLOCK RETURN OF INCOME ON 29-09-2000, DISCLOSING A TOTAL UNDISCLOSED INCOME OF RS, NIL.' ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 17 - MORE OVER IN SUPPORT OF ABOVE A COPY OF ABOVE LETTE R DATED 08-09-2000 ISSUED BY THE A.O. IS ENCLOSED HERE WITH AT PG. NO.12 CO NFORMING THE EXTENSION OF TIME LIMIT ALLOWED TO FILE THE RETURN UP TO 30-09-2 000. IN VIEW OF THE UNAMBIGUOUS PROVISIONS OF SECTION 14 2(1) (SUPRA) & THE UNDISPUTED FACTS OF THE PRESENT CASE OF THE APPELLA NT, THE RELIED NOTICE U/S.142(1) DATED 31.08.2000 IN ITSELF IS NON-EST AS ISSUED BEFORE FILLING OF A VALID RETURN ON 29-09-2000. (PG.NO.13 TO16) HOWEVER IT MAY KINDLY BE NOTED THAT THE ASSESSEE HA D FILED THE REPLY DATED 06- 09-2000 IN RESPONSE TO THE SPECIFIC DIRECTION ISSUE D BY THE A.O. AS PER LAST PARAGRAPH OF THE SAID NOTICE WHICH READS AS UNDER:- PLEASE NOTE THAT THESE INFORMATION ARE CALLED U/S. 142(1) OF I.T. ACT, THE REPLY OF WHICH COMPLETE IN ALL RESPECTS AND SUBSTANTIATED BY COMPLETE EVIDENCE AND PROOFS MUST BE FURNISHED BEFORE THE UNDERSIGNED ON OR BEFORE 19-09-2000. IF ANY PERSON OTHER THAN YOU WILL REPRESENT YOUR CASE, THE REPLY MUST BE SUBMITTED WITH PROPER VKALATNAMA/AUTHORIZATION. IN CASE NO REPLY IS SUBMITTED FROM YOUR SIDE BY THE DUE DATE WILL BE AS SUMED THAT YOU DO NOT HAVE TO SAY ANYTHING IN THIS REGARD AND FURTHER I.T. PRO CEEDING WILL BE PERUSED AS PER THE PROVISIONS OF THE ACT AND FACTS & EVIDENCES ON RECORD. PLEASE STRICT TO THE TIME LIMIT.' THUS THE COMPLIANCE MADE ON 06-09-2000 WAS MADE UNDER COMPUL SION & WAS NOT THEREFORE VOLUNTARY ONE. THEREFORE, IN VIEW OF THE VALID RETURN FILED ON 29-09-2000 THE A.O. WAS DUTY BOUND TO ISSUE & SERVE THE MANDATORY NOTICE U/S.143(2) TO ASSUME A VALID JURISDICTION AND TO MAKE A LAWFUL ASSESSMENT. IT IS MORE SO AS THE A.O. HAS TAKEN INTO CONSIDERATION THE BLOCK RETURN FILED BY THE AS SESSEE AND ALSO HE HAS DULY TAKEN INTO CONSIDERATION THE INCOME AND OTHER FACTS DISCLOSED BY THE ASSESSEE IN THE SAID BLOCK RETURN. 3.1. THE RELIANCE PLACED BY THE REVENUE ON THE DECISION IN THE CASE OF PARTH ALUMINIUM LIMITED IN IT(SS)/A/376/AHD/2002 I S INAPPLICABLE, MISPLACED AND DISTINGUISHABLE ON THE FACTS AND CIRCUMSTANCES OF T HE ASSESSEE'S CASE IN AS MUCH AS THAT THE SAID DECISION WAS RENDERED IN CONT EXT OF A PRESUMPTION THAT THE RETURN WAS FILED BEYOND THE ALLOWABLE TIME LIMI T WHEREAS IN THE CASE OF ASSESSEE SUCH RETURN IS FILED ON 29-09-2000 I.E. BE FORE THE EXTENDED TIME LIMIT ALLOWED UP TO 30.09.2000 TO FILE SUCH RETURN. FURTH ER EVEN OTHERWISE IF A RETURN IS FILED BEYOND THE PRESCRIBED TIME LIMIT IN THE SEARCH CASES CANNOT BE HELD AS NON-EST IN VIEW OF THE DECISION OF THE COOR DINATED BENCH AS AFFIRMED & UPHELD BY THE JURISDICTIONAL HIGH COURT OF GUJARAT IN THE CASE OF PRAKASH METAL WORKS VS DCIT CENTRAL CIRCLE-, L, AHMEDABD IN IT(SS)A NO.168/AHD/2003 (BLOCK PERIOD: 1.4.1988 TO 8.12.199 8) PRONOUNCED ON 10-4- 2008 BY ITAT 'A' BENCH, AHMEDABAD AND AS AFFIRMED & UPHELD BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT-1 VS PRAKASH METAL WORKS, IN TAX APPEAL NO.69 OF 2009 (GUJ). IT IS NOTEWORTHY TO MENTION HERE THAT WHILE DISPOSING THE SAID TAX APPEAL THE HONORABLE B ENCH OF THE HIGH COURT HAS TAKEN NOTE THAT REVENUE HAS CHALLENGED ORDER OF ITAT AHMEDABAD BENCH A' DATED 10.04.2008 BY PROPOSING FOLLOWING QUESTIO N STATED TO BE SUBSTANTIAL QUESTION OF LAW I.E. ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 18 - 'WHETHER THE APPELLATE TRIBUNAL IS RIGHT IN LAW AND ON FACTS IN REVERSING THE ORDER PASSED BY CIT(A) AND IN CANCELLING THE ASSESS MENT FOR BLOCK PERIOD ON THE GROUND THAT NOTICE U/S. 143(2) OF THE ACT WAS N OT SERVED?' THUS, BY RAISING THE ABOVE STATED SOLE GROUND ONLY, THE REVENUE HAS THUS ACCEPTED THE FOLLOWING DECISION OF THE ITAT 'A' BEN CH AHMEDABAD ITAT:- A BLOCK RETURN WHICH IS FILED BEYOND THE TIME LIMI T PRESCRIBED IN THE NOTICE BUT BEFORE COMPLETION OF ASSESSMENT IS A VALID RETU RN AND THE SAME CANNOT BE IGNORED BY THE A.O. AND EVEN IN THE INSTANT CASE WE FIND THAT THE A.0. HAS DULY TAKEN INTO CONSIDERATION THE BLOCK RETURN FILED BY THE ASSESSEE AND HE HAS DULY TAKEN INTO CONSIDERATION THE INCOME AND THE OTHER F ACTS DISCLOSED BY THE ASSESSEE IN THE BLOCK RETURN.' (KINDLY REFER TO PAR AGRAPH 5 OF THE SAID ORDER) ON THIS SETTLED ISSUE NOW A DIFFERENT STAND CANNOT BE PERMITTED TO BE TAKEN. IT IS RESPECTFULLY SUBMITTED THAT NOT ONLY THE DECISIO NS OF COORDINATED BENCHES BUT ALSO THE JUDGMENTS OF JURISDICTIONAL HIGH COURT ARE BINDING ON THE BENCH AND THEREFORE THEY ARE TO BE FOLLOWED AS HELD AND R EPORTED IN THE CASE OF SAYAJI IRON AND ENGG. CO. V CIT, 253 ITR 749 (GUJ). 4 . ANOTHER CASE RELIED BY THE REVENUE IS THAT OF Y. RA JENDRA, DEPUTY COMMISIONER OF INCOME TAX V. KHODAY ESHAWARA & SONS AND OTHERS AS REPORTED IN 144 TAXMAN 629 (KARNATAKA)/272 ITR 448 IS ALSO MISCONCEIVED, MISPLACED & DISTINGUISHABLE ON THE FACTS & CIRCUMST ANCES OF THE ASSESSEE'S CASE AS IN THE CITED CASE THE NOTICE WAS SERVED ON THE REPRESENTATIVE & THERE WAS PARTICIPATION ALSO. IN THE CASE ON HAND THERE I S NEITHER ANY PROOF OF ISSUANCE OF SUCH NOTICE NOR THERE WAS A SERVICE OF SUCH NOTICE ON ANY PERSON BE IT THE ASSESSEE OR REPRESENTATIVE. MOREOVER THE CITED CASE IS RELATED TO PROCEEDINGS U /S.276CC OF THE ACT WHICH IS FALLING UNDER CHAPTER XXII OF THE ACT I.E. OFFEN CES & PROSECUTION WHEREAS THE ASSESSEE'S CASE IS FALLING UNDER CHAPTER XIV-B OF THE ACT, I.E. SPECIAL PROCEDURE FOR ASSESSMENT OF SEARCH CASES. THE CONTR OVERSY IS NOT LAID TO REST BUT THE HONORABLE APEX COURT IN THE JUDGMENT DELIVE RED IN THE CASE OF ACIT VS HOTEL BLUE MOON, (2010) 321 ITR 362(SC) BY HOLDING THAT THE ISSUANCE OF NOTICE U/S. 143(2) OF THE ACT IS MANDATORY EVEN IN SEARCH CASES. 5. REVENUE HAS PLACED RELIANCE ON THE PROVISION OF SECTION 292B OF THE ACT ON THE GROUND THAT THE INTENTION OF THE NOTICE SERVED IS QUITE CLEAR. THERE IS A FALLACY IN STATING SO AS IN THE CASE OF ASSESSEE NE ITHER ANY SUCH NOTICE U/S.143(2) WAS ISSUED NOR THEREFORE IT WAS SERVED O N THE ASSESSEE. THE PROVISION SO ENACTED IS AN ENABLING PROVISION IN A SITUATION WHERE FIRSTLY ANY SUCH NOTICE IS ISSUED BUT IS SUBSEQUENTLY FOUND TO BE INVALID ON THE GROUND OF ANY MISTAKE, DEFECT OR OMISSION THEN ALSO IT SHOULD NOT BE TREATED AS INVALID OR DEEMED TO BE INVALID ON ACCOUNT OF SUCH MISTAKE, DE FECT OR OMISSION IN THE NOTICE. IN THE CASE ON HAND NO SUCH NOTICE IS EITHE R ISSUED BY THE A.O. OR SERVED UPON THE ASSESSEE. THEREFORE THE PROVISIONS OF SECTIONS292B OF THE ACT ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 19 - CANNOT BE MADE APPLICABLE IN THE ABSENCE OF SUCH NO TICE AND ITS SERVICE UPON THE ASSESSEE WITHIN THE STIPULATED TIME LIMIT. THE HONORABLE PUNJAB & HARYANA HIGH COURT ON SIMILAR GROUND HAS HELD THAT ABSENCE OF NOTICE IS NOT CURABLE U/S.292BB OF THE ACT IN THE CASE OF CIT V CEBON INDIA LTD.[2012] 347 ITR 583 (P&H) & AS ALSO HELD BY THE JURISDICTION HIGH COURT OF GU JARAT IN ITS JUDGMENT DELIVERED ON 23-06-2011 IN TAX APPEAL NO.205 OF 2008 IN THE CASE OF CIT VS. VASUDE S. WADHWANI AND FURTHER HELD BY THE HONORABLE DELHI HIGH COURT IN THE CASE OF ALPINE ELECTRONICS ASIA PVT. LTD. V. DIRECTOR GENERAL OF INCOME TAX (2012) 341 ITR 247. 6. LASTLY, AN ALTERNATIVE PLEA IS ALSO TAKEN BY THE REVENUE BY PLACING RELIANCE ON THE DECISION RENDERED IN THE CASE OF DEVENDRA G. CHATURVEDI IN IT(SS)A- 168/AHD/2006 BY STATING THAT: ADDITIONAL GROUND REGARDING NON ISSUE OF NOTICE U/ S.143(2) HAS TO BE ADMITTED BUT WHERE THE REVENUE DID NOT GET OCCASION TO EXAMINE THIS ISSUE IN DETAILS, THE MATTER IS TO BE SENT TO THE F ILE OF CIT(APPEALS) FOR RECORDING THE RELEVANT FATS AND FOR PROVIDING REASO NABLE OPPORTUNITY TO BE PROVIDED TO BOTH SIDES IN THE INTEREST OF NAT URAL JUSTICE. SINCE FACTS REGARDING ADDITIONAL GROUNDS IS SIMILAR IN TH E PRESENT CASE, IT IS ALTERNATIVELY PLEADED THAT IF THE PLEA OF PROPER SE RVICE OF NOTICE IS NOT PRIMA FACIE ACCEPTABLE, THEN THE MATTER MAY BE SENT BACK TO THE FILE OF THE CIT(APPEALS) FOR RECORDING THE RELEVANT FACTS A ND FOR PROVIDING REASONABLE OPPORTUNITY TO BOTH SIDES IN THE INTERES T OF NATURAL JUSTICE... 6.1. EVEN ON LAST HEARING ON 13-08-2013, THE LD.CIT DR H AS ON SPECIFIC QUERY RAISED ABOUT COMPLIANCE OF SUCH DIRECTION, MA DE A STATEMENT AT BAR THAT THE SUBMISSION DATED 13-08-2013 HANDED OVER TO THE BENCH & ASSESSEE CONTAINS SUCH COMPLIANCE WHICH IS AS PER PARA 2 OF THESE SUBMISSIONS. THUS WHEN IN COMPLIANCE TO THE DIRECTION OF THE HONORABL E BENCH THE REPLY BY THE LD. DR IS FURNISHED THE ONLY OPTION LEFT IS TO HEAR AND DECIDE THE CASE ON MERITS OF THE ADDITIONAL GROUND. NOW THE REVENUE CA NNOT BE PERMITTED TO TAKE SUCH PLEA PARTICULARLY WHEN EXCESSIVE OPPORTUNITY I S PROVIDED & AVAILED TO FURNISH THE REPLY. AS SUCH REPORT IS MADE (THOUGH N OT IN TERMS OF SPECIFIC DIRECTIONS ISSUED BY THE HONORABLE BENCH), NOW THE CASE AT THIS STAGE CANNOT BE ALLOWED TO BE REMANDED BACK TO THE CIT(A) AS THE REVENUE WAS ALLOWED TO EXAMINE THE ISSUE IN DETAILS & CONFIRMED THAT IT HA S NOT BEEN POSSIBLE TO TRACE SUCH NOTICE. MOREOVER THE CIT(APPEAL) CAN ONLY DISP OSE THIS GROUND ON THE BASIS OF INFORMATION SUPPLIED BY THE A.O. BUT THE A .O. SINCE THE YEAR 2008 COULD NOT SUBSTANTIATE EITHER THE ISSUANCE OF NOTIC E U/S.143(2) OF THE ACT OR ITS SERVICE AS SUPPORTED BY PROOF OF SERVICE WHICH IS D UE TO THE FACT THAT SUCH NOTICE WAS NEVER ISSUED AND THEREFORE COULD NOT BE SERVED UPON THE ASSESSEE. THE MATTER HAS NOW REACHED FINALITY ON THE ISSUANCE AND SERVICE OF SUCH NOTICE. THEREFORE, THE FACTS OF THE ASSESSEE ARE TOTALLY DI FFERENT FROM THE CITED CASE & AS SUCH INAPPLICABLE TO THE ASSESSEE'S CASE & AS SU CH DESERVED TO BE REJECTED AT THRESHOLD. ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 20 - 7. WITHOUT PREJUDICE TO THE ABOVE AND AS DUTY BOUND TO ASSIST THIS HONORABLE FORUM WHICH IS THE HIGHEST FACT FINDING A UTHORITY THE ASSESSEE IN ALL POSSIBLE & PERMISSIBLE MEANS TRIED HIS LEVEL BEST T O UNEARTH THE TRUTH & FACTS OF THE CASE AS RELATED TO THE NOTICE U/S. 143(2) OF THE ACT. THE RESULT MADE AVAILABLE ON HIS EFFORTS BY WAY OF DOCUMENTARY EVID ENCE AS SUPPLIED BY THE REVENUE AUTHORITY ITSELF ARE LISTED BELOW TO DETERM INE THE FACTUAL ASPECT OF THE MATTER & TO DECIDE THE ADDITIONAL GROUND ON THE BAS IS OF SUCH FACTS PLACED ON RECORD. IN ORDER TO APPRECIATE & RESOLVE THE ISSUE THE SAME ARE LISTED BELOW DATE WISE:- I) ON 14-03-2008 ADDITIONAL GROUND IS ADMITTED BY T HE BENCH AND MATTER IS ADJOURNED. FOR HEARING ON MERIT OF ADDITIONAL GROUN D TO 28-03-2008 WITH A DIRECTION TO THE DR TO FURNISH HIS REPLY CONFORMING OR DENYING THE ISSUANCE AND SERVICE OF NOTICE U/S. 143(2) OF THE ACT UPON T HE ASSESSEE ON OR BEFORE THE DATE OF COMPLETION OF BLOCK ASSESSMENT (23-03-2001) . II) ON 12-06-2012 THE ASSESSEE FILED AN APPLICATION UND ER THE RTI ACT BEFORE THE ITO WARD L(A) SURAT SEEKING INFORMATION ON NOTI CE U/S.L43(2) OF THE ACT FOR THE BLOCK PERIOD A.Y. 1989-90 TO A.Y. 1998-99 UPTO 07-01-1999 WITH A REQUEST TO SUPPLY A COPY OF SUCH NOTICE, IF ANY ISSUED IN R ESPONSE TO RETURN OF INCOME FILED ON 29-09-2000. (PG.NO.L7) III) ON 27-06-2012 THE ITO WARD 1(4) SURAT GAVE A R EPLY UNDER RTI ACT STATING THAT NOTICE U/S. 143(2) OF THE ACT WAS ISSU ED ON 23.03.2001 & SERVED UPON THE ASSESSEE ON 23-03-2001 FOR BLOCK PERIOD 19 89-90 TO 1993-94 AS PER THE ENCLOSURE. THE ENCLOSED NOTICE DISCLOSED THE FA CTUM OF A NOTICE ISSUED TO M/S. M. KANTILAL &. CO, 1205, PANCHARATNA, OPERA HO USE, MUMBAI AS SIGNED & SEALED BY MR.D.T.BALANI, DY. COMMISSIONER OF INCO ME TAX(INV), CIRCLE- 19, MUMBAI. (PG.NO.L8&19). IV) ON 13-08-2013 THE LD.CIT(ITAT)-III, AHMEDABAD F ILED WRITTEN SUBMISSION BY STATING IN PARAGRAPH 2 THAT IT HAS NOT BEEN POSS IBLE TO TRACE THE NOTICE ISSUED. V) ON 14-08-2013 THE ASSESSEE FILED ANOTHER APPLICA TION U/S.6 OF THE RTI ACT BEFORE THE ITO, WARD 1(4), SURAT HAVING THE JURISDI CTION OVER THE CASE SEEKING THE FOLLOWING INFORMATION ON REPORT ON NOTICE U/S.1 43(2) AS SUBMITTED TO CIT(ITAT) III, AHMEDABAD AS UNDER:- (PG.NO.20&21) . 7. THE APPELLANT SAYS & STATES THAT THE AO HAS INTE NTIONALLY TAKEN A CONSCIOUS DECISION NOT TO ISSUE SUCH MANDATORY NOTI CE U/S 143(2) OF THE ACT WHICH COULD HAVE ENABLED AND EMPOWERED HIM TO ASSUM E JURISDICTION TO ASSESS THE INCOME UNDER CHAPTER XIV-B OF THE ACT. SINCE THE A.O. HAS FAILED TO ISSUE AND SERVE ANY SU CH NOTICE TILL THE PASSING OF THE ORDER ON 23/03/2001, WHICH GOES TO THE VERY ROO T OF THE CAUSE, THEREFORE, THIS ADDITIONAL GROUND IS REQUESTED TO BE DECIDED F IRST. ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 21 - 8) IN SUPPORT OF ITS CONTENTION, RELIANCE IS PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENT AS APPLICABLE TO THE FACT OF THE PRES ENT CASE:- 1) ACIT VS HOTEL BLUEMOON, (2010) 321 ITR 362(SC). (PAGE NO.L TO 6) THE ORDER OF THE HONORABLE APEX COURT IS FOLLOWED & APP LIED BY VARIOUS OTHER COURTS & TRIBUNALS AS UNDER; 2) PRAKASH METAL WORKS VS DCIT CENTRAL CIRCLE- L,AHMED ABD IN IT (SS) A NO.L68/AHD./2003 (BLOCK PERIOD : 1.4.1988 TO 8.12.1 998) PRONOUNCED ON 10- 4-2008 BY ITAT 'A' BENCH, AHMEDABAD AND AS UPHELD B Y THE HONORABLE GUJARAT HIGH COURT IN THE CASE OF CIT-1 VS PRAKASH METAL WORKS, IN TAX APPEAL NO. 69 OF 2009(GUJ). (PAGE NO.7 TO 12). 3) THE HONORABLE GUJARAT HIGH COURT IN THE CASE OF CIT-1 V. VASUDEV S. VADHWANI, IN TAX APPEAL NO.205 OF 2008(GUJ). (PAGE NO. 13 TO 15) 4) CIT VS BIHARI LAL AGRAWAL, (2012) 346 ITR 0067(A II). (PAGE NO.16 TO 18) 5) CIT VS MUKESH KUMAR AGRAWAL,(2012) 345 ITR 0029( ALL).(PAGE NO,19 TO 21) 6) CIT VS PAWAN GUPTA,(2009) 318 ITR 322 (DEL). (PA GE NO.22 TO 34) 7) VIRENDRA DEV DIXIT VS. ACIT,(2010) 233 CTR (ALL) 177. (PAGE NO.35 TO 42) 8) JITENDRA PRABHUDAS CHOTALIA VS DY.CIT, SPL RANGE -5, AHMEDABAD IN IT(SS) A NO.L99/AHD/1997 (BLOCK PERIOD : 01/04/1985 TO 31/ 03/1995) PRONOUNCED ON 10/8/2007.(PAGE NO.43 TO 49) 9.) JANAK K.KANSARA VS DCIT,CENTRAL CIRCLE-1(4), AHMEDABAD IN IT(SS)A NO.146/AHD/2003 (BLOCK PERIOD: 1.4.1988 TO 8.12.199 8) PRONOUNCED ON 28/3/2008(PAGE NO.50 TO 53) 10) CIT V. CEBON INDIA LTD., [2012] 347 ITR 0583 (P &H) (PAGE NO.54 TO 55) 11) ALPINE ELECTRONICS ASIA PTE.LTD. V. DGIT [2012] 341 ITR 0247(DEL) (PAGE NO.56 TO 64) 12) ARUNLAL V. ACIT [2010] 001 ITR (TRIB) 0001 (AGR A BENCH). (PAGE NO.65 TO 81) 13) CIT V. MASCOMPTEL INDIA LTD. [2012] 345 ITR 58 (DELHI). (PAGE NO.82 TO 83) 14) DCIT V. MAXIMA SYSTEMS LTD. [2012] 344 ITR 204 (GUJ). (PAGE NO.84 TO 90) 15) PAI VINOD V. DCIT [2013] 353 ITR 622 (KARN). (PAGE NO.91 TO 96) ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 22 - 7. FROM THE SIDE OF THE REVENUE, LEARNED DR MR. T. P. KRISHNA KUMAR HAS SUBMITTED THAT THE ADMITTED FACTUAL POSIT ION WAS THAT A NOTICE U/S.142(1) WAS ISSUED. HE HAS PLEADED THAT THE DECI SION OF HONBLE APEX COURT IN THE CASE OF HOTEL BLUE MOON, 321 ITR 362 (SC) AS RELIED UPON BY THE APPELLANT IN RESPECT OF A STAND OF LACK OF A NOTICE U/S.143(2) VITIATING PROCEEDINGS AB INITIO CLEARLY SETS OUT THE PROPOSITION THAT THE ISSUE OF NOTICE U/S.142 IS SUFFICIENT TO MEET THE S TATUTORY REQUIREMENT OF ISSUE OF NOTICE FOR OBTAINING JURISDICTION. SO, THE STATUTORY REQUIREMENT OF ISSUE OF NOTICE AS CONCEIVED BY THE APEX COURT, IS IN TERMS OF ISSUANCE OF NOTICE U/S.142 OF IT ACT. DUE TO THIS REASON, THERE WAS NO INFIRMITY IN THE SAID ASSESSMENT ORDER. THE APPELLANT IS RAISING THIS TECHNICAL ISSUE AFTER A LAPSE OF SO MANY YEARS. DUE TO THE SAID DELAY, THE APPELLANT IS TAKI NG THE UNDUE ADVANTAGE OF INSISTING UPON THE EVIDENCE OF ISSUANCE OF NOTIC E U/S. 143(2) OF IT ACT. THIS CONTROVERSY HAS BEEN RAISED ONLY AS AN ADDITI ONAL GROUND. IT WAS A DELIBERATE ATTEMPT AFTER INORDINATE DELAY TO TAKE U NDUE ADVANTAGE OF THE HELPLESSNESS OF THE REVENUE DEPARTMENT. SUCH DELAYE D CLAIM MUST NOT BE ENTERTAINED NOW. IN RESPECT OF THE SEVERAL LEGAL PR OPOSITIONS, HE HAS PLACED RELIANCE ON THE DECISIONS AS LISTED BELOW: 1. THISTLE PROPERTIES (P) LIMITED VS. ACIT, CENTRA L CIRCLE-45, MUMBAI (2011) 16 TAXMANN.COM 155(MUMBAI). 2. COMMISSIONER OF INCOME TAX VS. SAMIR KUMAR ADITY A (2012) 17 TAXMANN.COM 128 (DELHI). 3. COMMISSIONER OF INCOME-TAX VS. VISION INC. (2012 ) 21 TAXMANN.COM 515 (DELHI). 4. SUMITRA MENON VS. ASSISTANT COMMISSIONER OF INCO ME-TAX, (2009) 315 ITR 111 (MAD.). 5. COMMISSIONER OF INCOME TAX VS. VINS OVERSEAS IND IA LTD. (2007) 165 TAXMAN.COM 95 (DELHI). 6. KIRAN NAGJI NISAR VS. ITO, WARD 19(2)(3), MUMBAI (2008), 114 ITD 319 (MUMBAI). ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 23 - 7. COMMISSIONER OF INCOME-TAX, NEW DELHI VS. REGENC Y EXPRESS BUILDERS (P) LTD, (2007) 161 TAXMANN 1 (DELHI). 7.1 LEARNED DR HAS ALSO RAISED A QUESTION THAT THER E IS A RESTRICTION ON QUESTIONING OF JURISDICTION AS SET DOWN U/S.124(3) OF IT ACT . IF THIS ASSESSEE WANTED TO CHALLENGE THE JURISDICTION THEN IT SHOULD HAVE BEEN DONE WITHIN ONE MONTH. THE ASSESSEE HAD NOT QUESTIO NED THE JURISDICTION TILL THE ASSESSMENT WAS COMPLETED. THE QUESTION OF LACK OF JURISDICTION HAS BEEN RAISED AFTER THE LAPSE OF SO MANY YEARS IS , THEREFORE, OUT OF THE AMBITS OF THE LAID DOWN PROVISIONS OF IT ACT AS PER SECTION 124(3) OF IT ACT. RELIANCE WAS PLACED UPON THE CASE OF VAISHALI BUILDERS & COLONIZERS VS. ADDITIONAL CIT, JODHPUR, (2012) 25 T AXMANN.COM 464 (JODHPUR) AND MANHARLAL V. SHAH VS. JOINT CIT, AHME DABAD, (2011) 10 TAXMANN.COM 64 (AHD) . 7.2 THEREAFTER, HE HAS PLEADED THAT A NOTICE U/S.14 3(2) IS NOTHING BUT A PROCEDURAL FORMALITY TO CALL FOR THE DETAILS IN RES PECT OF THE RETURN FILED. FOR THIS REASON, EVEN A COMMUNICATION ADDRESSED TO THE ASSESSEE IS SUFFICIENT TO MEET THE REQUIREMENT OF NOTICE U/S.14 3(2) OF IT ACT. HE HAS ALSO PLEADED THAT THERE IS NO PRESCRIBED PROFORMA F OR ISSUING NOTICE U/S.143(2) OF IT ACT. HE HAS PLACED RELIANCE UPON T HE CASE OF ASHOK CHADDHA VS. ITO, (2012) 20 TAXMANN.COM 387 (DEL) AN D K.J. THOMAS VS. CIT, (2008) 301 ITR 301 (KER) . 7.3 FURTHER ENLARGING HIS ARGUMENTS LEARNED DR HAS PLEADED THAT WHEREUPON ASSESSEE HAD PARTICIPATED IN THE ASSESSME NT PROCEEDINGS TIME AND AGAIN THEN HE MUST NOT THEREAFTER QUESTION THE LEGALITY OF THE JURISDICTION OF THE PROCEEDINGS. FOR THIS LEGAL PRO POSITION, CASE LAW CITED ARE CIT VS. VISION INC., (2012) 21 TAXMANN.COM, 515 (DE L), SAMIR ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 24 - KUMAR ADITYA, (2012) 17 TAXMANN.COM 128 (DEL), CHAT TURAM VS. CIT, (1947) 15 ITR 302, ESTATE OF LATE RANGALAL JAJODIA VS. CIT, (1971) 79 ITR 505, CIT VS. JAI PRAKASH SINGH, (1996) 219 ITR 737. 7.4 LASTLY, HE HAS ARGUED THAT THE PROVISIONS OF SE CTION 292B OF THE ACT HAVE BEEN SPECIFICALLY INTRODUCED WITH AN INTEN T TO CURE SUCH DEFECTS. THE PROVISIONS OF THIS SECTION CLEARLY COVER THE PO INT OF LACK OF JURISDICTION. HE HAS ALSO MENTIONED THAT THE PROVIS IONS OF SECTION 292BB ARE CURATIVE IN NATURE AND TO BE APPLIED RETROSPECT IVELY. RELIANCE WAS PLACED ON ITO VS. VARIA PRATEEK ENGINEERING, (2009) 120 TTJ 1 (AHD) AND ARAVALLI ENGINEERING PVT. LTD. VS. CIT, (2012) TAXMAN.COM 291 (P&H) . MOREOVER, THE RETURN FILED BY THE ASSESSEE WAS DE FECTIVE, THEREFORE, FOR THE PURPOSE OF COMPLETION OF ASSESSM ENT U/S.158 BC, THE AO HAD ISSUED NOTICE U/S.142(1) OF IT ACT. THEREFOR E, AGAIN PLACING RELIANCE UPON THE DECISION OF HONBLE DELHI HIGH CO URT PRONOUNCED IN THE CASE OF ASHOK CHADDHA (SUPRA), HE HAS CONCLUDED THAT IN THE SAID DECISION THE CASE LAW OF HOTEL BLUEMOON (SUPRA) WAS CONSIDERED AND THEREAFTER IT WAS HELD THAT ISSUANCE OF NOTICE U/S. 143(2) IS NOT MANDATORY FOR FINALIZATION OF ASSESSMENT U/S.153A IF A QUESTI ONNAIRE HAS BEEN ISSUED AND THE ASSESSEE WAS GIVEN SUFFICIENT TIME TO ATTEN D THE OFFICE. 8. WE HAVE HEARD BOTH THE SIDES AT LENGTH. WE HAVE CAREFULLY PERUSED THE FACTUAL ASPECT OF THIS LEGAL PROBLEM SIMULTANEO USLY. WE HAVE ALSO GONE THROUGH THE PRECEDENTS CITED FROM BOTH THE SID ES. ON THE BASIS OF SEVERAL CORRESPONDENCE AND THE OPPORTUNITIES GRANTE D TO THE REVENUE DEPARTMENT, WE HAVE NOTED THAT THE EVIDENCE OF EXISTENCE OF NOTICE U/S.143(2) COULD NOT BE PLACED BY THE REVENUE DEPAR TMENT BEFORE THE TRIBUNAL. THERE WERE A SERIES OF SUCH CORRESPONDENCES, AS NO TED ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 25 - HEREINABOVE, THROUGH WHICH THE REVENUE DEPARTMENT H AS FAIRLY ACCEPTED THE FACT THAT THERE WAS NO NOTICE U/S.143(2) EVER E XISTED OR ISSUED OR SERVED. EVEN THEN, WE HAVE TO SEE THAT IN A SITUATI ON WHEN A LETTER WAS ISSUED BY THE REVENUE AUTHORITY AND THAT LETTER WAS RESPONDED BY THE ASSESSEE THEN WHETHER THERE WAS A LEGAL REQUIREMENT TO ISSUE A NOTICE U/S.143(2) OF IT ACT ESPECIALLY WHEN THE ASSESSEE H AS PARTICIPATED IN THE PROCEEDINGS. AT THIS JUNCTURE, IT IS WORTH TO MENTION THAT ON RE CEIVING THAT LETTER THE ASSESSEE HAS RESPONDED ON 07.11.2000 AND REQUESTED THE AO TO ISSUE NOTICE U/S.143(2) OF IT ACT BY SPECIFICALLY M ENTIONING THAT IN BLOCK ASSESSMENT PROCEEDINGS TO BE HELD U/S.158BC I T IS MANDATORY TO ISSUE A NOTICE U/S.143(2) OF IT ACT. IT WAS ALSO CLARIFIED THAT IN THE ABSENCE OF THE REQUISITE NOTICE U/S.143(2), THE PAR TICIPATION IN THE PROCEEDINGS BY THE ASSESSEE WAS UNDER PROTEST. EVEN AFTER POINTING OUT TO THE AO ABOUT THE MANDATORY REQUIREMENT OF THE ISSUA NCE OF NOTICE U/S. 143(2) OF IT ACT, THE AO HAD NOT TAKEN THE COGNIZAN CE AND PROCEEDED TO FINALIZE THE ASSESSMENT WITHOUT ISSUING THE SAID RE QUISITE NOTICE U/S.143(2) OF IT ACT. 9 HOWEVER, FROM THE SIDE OF THE REVENUE, LEARNED DR HAS STILL PLEADED THAT THERE AS FEW CASE LAWS WHEREIN IT WAS HELD THAT THE ISSUANCE OF NOTICE U/S.143(2) IS NOT MANDATORY. IN THIS CONN ECTION, FIRST HE HAS PLACED RELIANCE ON A DECISION OF ITAT MUMBAI BENCH IN THE CASE OF THISTLE PROPERTIES (SUPRA) , WHEREIN THE ASSESSEE HAD CHALLENGED THE SERVICE OF NOTICE U/S.143(2) AFTER A GAP OF FIVE YE ARS. THE TRIBUNAL HAS TAKEN A VIEW THAT THE NOTICE MUST HAVE BEEN SERVED OTHERWISE THERE WAS NO OCCASION FOR THE ASSESSEES REPRESENTATIVE TO AT TEND THE ASSESSMENT PROCEEDINGS BEFORE THE AO. OUR COMMENT IS THAT THE SITUATION IS ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 26 - ALTOGETHER DIFFERENT IN THE PRESENT APPEAL BECAUSE THE REVENUE DEPARTMENT HAS BEEN ASKED TO SHOW THE EXISTENCE OF SECTION 143(2) OF IT ACT, MOREOVER THAT TOO WAS CHALLENGED IN A COMMUNIQ U TO THE AO. NEXT, LEARNED DR HAS CITED A DECISION OF DELHI HIGH COURT IN THE CASE OF SAMIR KUMAR ADITYA (SUPRA) AND THE ISSUE WAS THAT THE NOTICE U/S.143(2) WAS SERVED ON THE ASSESSEE ON THE LAST DATE OF PRESCRIB ED PERIOD OF LIMITATION BY AFFIXTURE. THIS CASE LAW IS ALSO MISPLACED BECAU SE IN THE PRESENT CASE THE VERY EXISTENCE OF NOTICE U/S.143(2) WAS NOT EST ABLISHED BY THE REVENUE DEPARTMENT. LEARNED DR HAS ALSO CITED AN AN OTHER DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF VISION INC. (SUPRA) BUT THE FACT WAS THAT THE ASSESSEE HAD CHALLENGED THE SERVICE OF NOTICE U/S.143(2) ON THE GROUND THAT THE SAME WAS SERVED ON AN EMPLOYEE OF THE FIRM. THERE WAS EVIDENCE THAT THE ASSESSEE HAD PARTICIPATED IN THE ASSESSMENT PROCEEDINGS PURSUANT TO THE SAID NOTICE; HENCE, IT WAS HELD THAT THE NOTICE U/S. 143(2) WAS VALIDLY SERVED. OUR COMMENT IS THAT THIS DECISION HAS NO BEARING ON THE FACTS OF THE APPEAL IN HAND; HENCE, DESERVES TO BE IGNORED. EVEN IN THE CASE OF SUMITRA MENON (SUPRA) , AS CITED BY LEARNED DR THE ASSESSEE HAS CHALLENGED THE SERVICE OF NOTICE BUT O N THE OTHER HAND, ASSESSEE WAS REPRESENTED BY AN AUDITOR; HENCE, THE HONBLE MADRAS HIGH COURT HAS HELD THAT THE ASSESSEE SHOULD NOT MAKE AN Y GRIEVANCE OF GRANT OF OPPORTUNITY OF HEARING. FACTS BEING NOT AKIN TO THE FACTS OF THE APPEAL IN HAND; HENCE, THIS DECISION IS ALSO MISPLACED. LE ARNED DR HAS CITED THE VINS OVERSEAS INDIA LTD. (SUPRA) PRONOUNCED BY DELHI HIGH COURT WHEREIN THE ASSESSEE HAD FURNISHED AN AFFIDAVIT BEF ORE THE TRIBUNAL. THE HONBLE COURT HAS HELD THAT THE TRIBUNAL HAD ERRED IN PLACING RELIANCE ON THE SAID AFFIDAVIT WHICH WAS NOT BEFORE THE LOWER A UTHORITIES AND BELATEDLY FILED WITHOUT SUPPORT. EVEN THIS ORDER CA NNOT HELP THE REVENUE DEPARTMENT BECAUSE OF THE DISTINCTION IN THE FACTS. REVENUE HAS CITED A ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 27 - DECISION OF ITAT MUMBAI BENCH IN THE CASE OF KIRAN NAGJI NISAR (SUPRA) WHEREIN THERE WAS ADMITTEDLY A NON-COMPLIANCE OF T HE NOTICE OF SECTION 143(2). IT WAS HELD THAT BY VIRTUE OF THE P ROVISIONS OF SECTION 147/148 ITSELF THE ASSESSMENT MUST NOT BE RENDERED AS NULL AND VOID. ACCORDING TO THE RESPECTED CO-ORDINATE BENCH WHERE PRINCIPLE OF NATURAL JUSTICE HAS OTHERWISE BEEN MET THEN THE APPELLATE A UTHORITY SHOULD PROCEED TO DECIDE THE CASE ON MERITS. WE ARE OF THE VIEW THAT THE TRIBUNAL HAS CONSIDERED THE PROCEDURAL ASPECT IN TERMS OF SE CTION 147/148 OF IT ACT AND NOT IN TERMS OF THE PROVISIONS OF SECTION 1 58BC OF IT ACT. WE SHALL DISCUSS THE DISTINCTION HEREINBELOW, BUT AT T HE MOMENT, IT IS WORTH TO MENTION THAT U/S.158BC(B) THE ASSESSING OFFICER SHOULD PROCEED TO DETERMINE THE UNDISCLOSED INCOME OF THE BLOCK PERIO D IN THE MANNER LAID DOWN IN THE PROVISIONS OF SECTION 143(2) AND ( 3) OF THE ACT SO FAR AS MAY APPLY. THEREFORE REST OF THE CASE LAWS OF THE REVENUE AS WELL ARE DISTINGUISHABLE ON THIS LEGAL POINT. 9.1 LEARNED DR, MR. T.P. KRISHNA KUMAR HAS ALSO RAI SED AN ANOTHER LEGAL POINT THAT IN TERMS OF SECTION 124(3); NO PERSON/ASSESSEE IS ENTITLED TO CALL IN THE QUESTION OF JURISDICTION OF THE AO W HERE HE HAS MADE A RETURN, AFTER THE EXPIRY OF ONE MONTH FROM THE DATE ON WHICH HE WAS SERVED WITH A NOTICE U/S. 142(1) OR AFTER THE COMPL ETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. IN SUPPORT OF THIS LEGAL ISSU E, LEARNED DR HAS PLACED RELIANCE UPON ITAT JODHPUR BENCH DECISION IN THE CA SE OF VAISHALI BUILDERS AND COLONIZERS (SUPRA) . BUT ON CAREFUL READING, WE HAVE NOTED THAT THE ENTIRE ISSUE WAS IN RESPECT OF THE POWER TO TRANSFER A CASE BY THE INCOME TAX AUTHORITIES. IT DID NOT PERTAIN TO THE L EGAL ISSUE OF NON- COMPLIANCE OF A MANDATORY REQUIREMENT AND FOR THIS REASON ALONE DEBARRING AN AUTHORITY TO CONTINUE WITH THE PROCEED ING. LEARNED DR HAS ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 28 - ALSO CITED A DECISION OF HONBLE ITAT AHMEDABAD BEN CH PRONOUNCED IN THE CASE OF MANHARLAL V. SHAH (SUPRA) AND ON THE QUESTION OF JURISDICTION IT WAS HELD THAT NO MATERIAL WAS PRODU CED BY THE ASSESSEE TO SHOW THAT THE AO WAS NOT VESTED WITH THE TERRITORIA L JURISDICTION; HENCE, THE OBJECTION WAS REJECTED. THE TRIBUNAL WAS AWARE THAT ACCORDING TO SECTION 124(1), THE JURISDICTION TO THE AO IS VESTE D IN HIM AS PER SECTION 120(1) OR SUB SECTION (2). AT THIS JUNCTURE, IT IS WORTH TO MENTION THAT VIDE SECTION 120, THE INCOME TAX AUTHORITIES SHALL EXERC ISE POWERS CONFERRED OR ASSIGNED BY AUTHORITIES UNDER THE ACT IN ACCORDA NCE WITH THE DIRECTIONS OF THE BOARD. SUB SECTION (3) OF SECTION 120 PRESCR IBES THAT IN ISSUING THE DIRECTIONS UNDER SUB SECTION (1) OR UNDER SUB SECTI ON (2) OF SECTION 120 THE BOARD SHALL HAVE THE CRITERIA, NAMELY, TERRITOR IAL AREA, CLASS OF PERSON, CLASS OF INCOME OR CLASS OF CASES ETC. IT MAY NOT BE OUT OF CONTEXT, RATHER FRUITFUL, TO M ENTION THAT JURISDICTION , IN LAW MEANS THE AUTHORITY TO TAKE COGNIZANCE AND DECIDE MATTERS IN RESPECT WHEREOF ANY AUTHORITY IS EMPOWER ED TO PERFORM ITS FUNCTIONS UNDER ANY STATUTE. THE POWER TO CONFER JU RISDICTION IS IMPOSED BY THE STATUTE AND MAY BE DELEGATED TO AN APPROPRIA TE AUTHORITY BY ITS PROVISIONS. WANT OF JURISDICTION MUST BE DISTINGUIS HED FROM AN IRREGULAR OR AN ERRONEOUS EXERCISE OF JURISDICTION. IF THERE IS WANT OF JURISDICTION, THE WHOLE PROCEEDINGS IS CORUM NON JUDICE . THE ABSENCE JURISDICTION TO MAKE AN ORDER, DEPRIVES THE ORDER OF ANY CONCLUSIVE EFFECT, WHERE AN ORDER HAS BEEN PASSED BY AN AUTHORITY WHO HAD NO JU RISDICTION AB INITIO TO PASS SUCH AN ORDER. THE SAID ORDER IS A NULLITY. SUCH AN ORDER IS LIABLE TO BE ANNULLED. HOWEVER, IT IS ALSO WORTH TO MENTIO N THAT WHERE THE AUTHORITY DOES NOT LACK JURISDICTION BUT SUFFER AN IRREGULARITY OR AN ERROR, THEN SUCH AN ORDER IS NOT LIABLE TO BE ANNULLED. BU T SUCH AN ORDER IS LIABLE TO BE SET ASIDE. WE MAY LIKE TO FURTHER MENTION ESP ECIALLY WHEN THE ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 29 - LEARNED DR HAS REFERRED SECTION 124 OF IT ACT THAT THE LACK OF JURISDICTION MAY BE OF MANY VARIETIES. LACK OF JURI SDICTION MAY BE DUE TO WANT OF JURISDICTION OVER THE PLACE. LIKEWISE, LACK OF JURISDICTION COULD BE DUE TO WANT OF JURISDICTION IN RESPECT OF A PERS ON. THE OTHER VARIETY OF LACK OF JURISDICTION COULD BE DUE TO NO AUTHORITY U NDER LAW OR NO AUTHORITY TO DECIDE A PARTICULAR MATTER. THERE COUL D BE A POSSIBILITY OF STATUTORY BAR TO PROCEED WITH A MATTER. THEREFORE, WHILE DEALING WITH A CASE WHERE THE QUESTION OF JURISDICTION IS RAISED, THE DISTINCTION BETWEEN WANT OF TERRITORIAL JURISDICTION OR AN IRREGULAR EX ERCISE OR A WRONG ASSUMPTION OF JURISDICTION SHOULD BE BORNE IN MIND. WE, THEREFORE, HOLD THAT THE IMPUGNED OBJECTION OF LEARNED DR THAT THE JURISDICTION WAS REQUIRED TO BE CHALLENGED WITHIN ONE MONTH HAS NO L EGAL FORCE, BECAUSE THE OPERATION OF SECTION 124 IS ENTIRELY IN DIFFERE NT DIRECTION WHICH IS NOWHERE NEAR TO THE PROVISIONS OF SECTION 158BC TO BE READ WITH THE PROVISIONS OF SECTION 143(2) OF IT ACT. THIS OBJECT ION IS TURNED DOWN. 9.2 LEARNED DR HAS PLACED VEHEMENT RELIANCE ON A DE CISION OF DELHI HIGH COURT IN THE CASE OF ASHOK CHADDHA (SUPRA) . IN THIS CASE, THE ADMITTED FACTUAL POSITION WAS THAT THERE WAS NO NOTICE U/S.143(2) OF IT ACT WHILST THE ASSESSMENT WAS FINALIZED U/S.153A OF IT ACT. THE HONBLE COURT HAS HELD THAT THE ISSUE OF NOTICE U/S .143(2) IS NOT MANDATORY FOR FINALIZATION OF ASSESSMENT U/S.153A O F IT ACT. IN THIS DECISION, THE CASE LAW OF HOTEL BLUEMOON, 321 ITR 362 (SC) HAS ALSO BEEN RECORDED. WE HAVE CAREFULLY EXAMINED THIS DECI SION OF THE HONBLE DELHI HIGH COURT. WE HAVE ALSO CAREFULLY PERUSED TH E PROVISIONS OF SECTION 153A AS WELL AS THE PROVISIONS OF SECTION 1 58BC. WE HAVE NOTED THAT THERE IS A VAST DISTINCTION BETWEEN THE LANGUA GE OF THESE TWO SECTIONS OF I.T.ACT. IN OUR HUMBLE UNDERSTANDING OF LAW, THE PROVISIONS OF SECTION ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 30 - 153A SET OUT A PROCEDURE FOR ASSESSMENT IN CASE OF SEARCH OR REQUISITION. IT PRESCRIBES THAT THE AO SHALL ISSUE NOTICE TO SUC H PERSON REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING W ITHIN SIX ASSESSMENT YEARS AND THE PROVISIONS OF THE ACT SHALL SO FAR AS MAY BE APPLIED ACCORDINGLY AS IF SUCH RETURN IS A RETURN FURNISHED U/S.139 OF THE ACT. WHAT WE HAVE NOTED THAT THERE IS NO SPECIFIC REQUIR EMENT IN SEC 153A OF ISSUANCE OF NOTICE U/S.143 OF THE ACT. ON THE CONTR ARY, U/S. 158BC THERE IS A SPECIFIC REQUIREMENT THAT THE AO SHALL PROCEED TO DETERMINE THE UNDISCLOSED INCOME OF THE BLOCK PERIOD AND THAT THE PROVISIONS OF SECTION 143(2) AND SECTION 143(3) SHALL, SO FAR AS MAY, BE APPLIED. FOR THE READY REFERENCE, THE RELEVANT PORTION OF SECTIO N 158BC IS EXTRACTED BELOW: PROCEDURE FOR BLOCK ASSESSMENT 158BC. WHERE ANY SEARCH HAS BEEN CONDUCTED UNDER SE CTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS ARE REQUISITIONE D UNDER SECTION 132A, IN THE CASE OF ANY PERSON, THEN,- [(A) THE ASSESSING OFFICER SHALL- (I) IN RESPECT OF SEARCH INITIATED OR BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED AFTER THE 30 TH DAY OF JUNE, 1995, BUT BEFORE THE 1 ST DAY OF JANUARY, 1997, SERVE A NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITH IN SUCH TIME NOT BEING LESS THAN FIFTEEN DAYS; (II) IN RESPECT OF SEARCH INITIATED OR BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED ON OR AFTER T HE 1 ST DAY OF JANUARY, 1997, SERVE A NOTICE TO SUCH PERSON REQUIR ING HIM TO FURNISH WITHIN SUCH TINE NOT BEING LESS THAN FIFTEN N DAYS BUT NOT MORE THAN FORTY-FIVE DAYS, AS MAY BE SPECIFIED IN THE NOTICE A RETURN IN THE P RESCRIBE FORM AND VERIFIED IN THE SAME MANNER AS A RETURN UNDER CLAUS E (I) OF SUB-SECTION (1) OF SECTION 142, SETTING FORTH HIS TOTAL INCOME INCLUDING THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD: PROVIDED THAT NO NOTICE UNDER SECTION 148 IS REQUIRED TO BE ISSUED FOR THE PURPOSE OF PROCEEDING UNDER THIS CHAPTER: PROVIDED FURTHER THAT A PERSON WHO HAS FURNISHED A RETURN UNDER THIS CLAUSE SHALL NOT BE ENTITLED TO FILE A REVISED RETU RN;] (B) THE ASSESSING OFFICER SHALL PROCEED TO DETERMIN E THE UNDISCLOSED INCOME OF THE BLOCK PERIOD IN THE MANNER LAID DOWN IN SECTION 158BB AND THE PROVISIONS OF SECTION 142, SUB-SECTIO NS (2) AND (3) OF ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 31 - SECTION 143 [SECTION 144 AND SECTION 145] SHALL, SO FAR AS MAY BE, APPLY. 9.3 DUE TO THE ABOVE DISTINCTION, WE MAY BE PERMITT ED BY THE HONBLE COURTS TO HOLD THAT BOTH THE DECISIONS, ONE BY THE HONBLE APEX COURT IN THE CASE OF HOTEL BLUEMOON (SUPRA) AND THE OTHER BY THE HONBLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADDHA (SUPRA) HAVE BEEN PASSED IN THE CONTEXT OF TWO DISTINCT PROVISIONS OF IT ACT; H ENCE BOTH ARE ACCURATE AS ALSO ACCEPTABLE IN THE CONTEXT OF RESPECTIVE PRO VISIONS. THE DISTINCTION IN THE STATUTE HAS BEEN CONSIDERED AND THEREUPON TH ESE TWO JUDGMENTS WERE DELIVERED AND RIGHTLY SO. THERE ARE SERIES OF DECISIONS PRONOUNCED, ON THE ISSUE IN HAND, FOLLOWING HOTEL BLUEMOON (SUPRA) OR THE DECISION OF SMT. BANDHANA GOGOI, 209 CTR 31 (GUWAHATI) . TO START WITH, WE HEREBY DISCUSS THE DECISION OF HOTEL BLUEMOON, 321 ITR 362 (SC) WHEREIN THE OBSERVATIONS WERE AS UNDER: 7. THE ONLY QUESTION THAT ARISES FOR OUR CONSIDERA TION IN THIS BATCH OF APPEAL IS, WHETHER SERVICE OF NOTICE ON THE ASSESSEE UNDER S. 143(2) WITHIN THE PRESCRIBED PERIOD OF TIME IS A PREREQUISITE FOR FRA MING THE BLOCK ASSESSMENT UNDER CHAPTER XIV-B OF THE IT ACT, 1961?........... . 15. WE MAY NOW REVERT BACK TO S. 158BC(B) WHICH IS THE MATERIAL PROVISION WHICH REQUIRES OUR CONSIDERATION. SEC.158BC(B) PROVIDES FOR ENQUIRY AND ASSESSMENT . THE SAID PROVISION READS 'THAT THE AO SHALL PROCE ED TO DETERMINE THE UNDISCLOSED INCOME OF THE BLOCK PERIOD IN THE M ANNER LAID DOWN IN S.158BB AND THE PROVISIONS OF S.142, SUB-SS. (2) AN D (3) OF S. 143, S. 144 AND S. 145 SHALL, SO FAR AS MAY BE, APPLY.' AN ANALYSIS OF THIS SUB-SECTION INDICATES THAT, AFTER THE RETURN IS FILED, THIS CLAUSE ENABLE S THE AO TO COMPLETE THE ASSESSMENT BY FOLLOWING THE PROCEDURE LIKE ISSUE OF NOTICE UNDER S. 143(2)/142 AND COMPLETE THE ASSESSMENT UNDER S. 143(3). THIS S ECTION DOES NOT PROVIDE FOR ACCEPTING THE RETURN AS PROVIDED UNDER S.143(1) (A). THE AO HAS TO COMPLETE THE ASSESSMENT UNDER S. 143(3) ONLY. IN CA SE OF DEFAULT IN NOT FILING THE RETURN OR NOT COMPLYING WITH THE NOTICE UNDER S . 143(2)/142, THE AO IS AUTHORIZED TO COMPLETE THE ASSESSMENT EX PARTE UNDE R S.144. CLAUSE (B) OF S.158BC BY REFERRING TO SS.43(2) AND143(3) WOULD A PPEAR TO IMPLY THAT THE PROVISIONS OF S.143(1) ARE EXCLUDED. BUT S. 143(2) ITSELF BECOMES NECESSARY ONLY WHERE IT BECOMES NECESSARY TO CHECK THE RETURN , SO THAT WHERE BLOCK RETURN CONFORMS TO THE UNDISCLOSED INCOME INFERRED BY THE AUTHORITIES, THERE IS NO REASON, WHY THE AUTHORITIES SHOULD ISSUE NOTICE UNDER S. 143(2). HOWEVER, ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 32 - IF AN ASSESSMENT IS TO BE COMPLETED UNDER S. 143(3) R/W S. 158BC, NOTICE UNDER S. 143(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING OF BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER S.143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND TH E SAME IS NOT CURABLE AND, THEREFORE, THE REQUIREMENT OF NOTICE UNDER S. 143(2)_CANNOT BE DISPENSED WITH. THE OTHER IMPORTANT FEATURE THAT REQUIRES TO BE NO TICED IS THAT THE S.158BC(B) SPECIFICALLY REFERS TO SOME OF THE P ROVISIONS OF THE ACT WHICH REQUIRES TO BE FOLLOWED BY THE AO WHILE COMPLETING THE BLOCK ASSESSMENTS UNDER CHAPTER XIV-B OF THE ACT. THIS LEGISLATION IS BY INCORPORATION. THIS SECTION EVEN SPEAKS OF SUB-SECTIONS WHICH ARE TO BE ALLOWED BY THE AO. HAD THE INTENTION OF THE LEGISLATURE WAS TO EXCLUDE THE PROVISIONS OF CHAPTER XIV OF THE ACT, THE LEGISLATURE WOULD HAVE OR COULD HAV E INDICATED THAT ALSO. A READING OF THE PROVISION WOULD CLEARLY INDICATE, IN OUR OPINION, IF THE AO, IF FOR ANY REASON, REPUDIATES THE RETURN FILED BY THE ASSESSEE IN RESPONSE TO NOTICE UNDER S.158BC(A), THE AO MUST NECESSARILY IS SUE NOTICE UNDER S.143(2) OF THE ACT WITHIN THE TIME PRESCRIBED IN THE PROVIS O TO S.143(2) OF THE ACT WITHIN THE TIME PRESCRIBED IN THE PROVISO TO S.143( 2) OF THE ACT. 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 PRO VISIONS OF S. 142, SUB-SS. (2) AND (3) OF S. 143 STRICTLY FOR THE PURPOSE OF BLOCK ASSESSEMENT. WE DO NOT AGREE WITH THE SUBMISSIONS OF THE LEARNED COUNSEL F OR THE REVENUE, SINCE WE DO NOT SEE ANY REASON TO RESTRICT THE SCOPE AND MEA NING OF THE EXPRESSION SO FAR AS MAY BE APPLY. IN OUR VIEW, WHERE THE AO IN REPUDIATION OF THE RETURN FILED UNDER S. 158BC(A) PROCEEDS TO MAKE AN ENQUIRY , HE HAS NECESSARILY TO FOLLOW THE PROVISIONS OF S. 142, SUB-SS. (2) AND (3 ) OF S. 143 17. ON A CONSIDERATION OF THE PROVISIONS OF CHAPTER XI V-B OF THE ACT, WE ARE IN AGREEMENT WITH THE REASONING THE CONCLUSION REAC HED BY THE HIGH COURT. 9.4 THE HONBLE COURT HAS THUS GIVEN A CLEAR VERDIC T THAT CONSIDERING THE PROVISIONS OF CHAPTER XIV-B, THE AO HIMSELF NEC ESSARILY ISSUE NOTICE U/S.143(2) OF IT ACT. NEXT, A DECISION OF HONBLE I TAT A BENCH AHMEDABAD HAS BEEN CITED PRONOUNCED IN THE CASE OF PRAKASH METAL WORKS IN IT(SS)A NO.168/AHD/2003, ORDER DATED 10.04.2008 WHEREIN AN OBSERVATION WAS MADE THAT IT IS AN ESTABLISHED RULE OF INTERPRETATION THAT ONE SHOULD NOT INTERPRET A PROVISION IN SUCH A MANN ER SO AS TO MAKE WHAT HAS BEEN ENACTED IN OTHER PROVISIONS OF THE ACT AS REDUNDANT. THE LEGISLATURE DOES NOT ENACT ANYTHING IN THE STATUTE WITHOUT ANY MEANING OR PURPOSE. IT HAS BEEN INFORMED THAT THE SAID ORDER OF THE TRIBUNAL WAS LATER ON CONFIRMED BY THE HONBLE GUJA RAT HIGH COURT IN ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 33 - TAX APPEAL NO.69 OF 2009 ORDER DATED 23.03.2010. TH E HONBLE COURT HAS HELD THAT IN THE CASE OF HOTEL BLUEMOON, THE AP EX COURT HAD LAID DOWN THAT FOR THE PURPOSE OF FRAMING ASSESSMENT FOR A BLOCK PERIOD A NOTICE U/S.143(2) IS MANDATORY AND ABSENCE THEREOF CANNOT BE TREATED TO BE A PROCEDURAL LAPSE. THUS IN OUR CONSIDERED OPINION A BLOCK RETURN WHICH IS FILED WITHIN THE TIME LIMIT PRESCRIBED IN THE NOTICE BUT BEFORE COMPLETION OF THE ASSESSMENT IS A VALID RETURN AND THE SAME CANNOT BE IGNORED BY THE AO. EVEN IN THE INSTANT CASE WE FIND THAT THE AO HAS DU LY TAKEN INTO CONSIDERATION THE BLOCK RETURN FILED BY THE ASSESSE E. HE HAS DULY TAKEN INTO CONSIDERATION THE OTHER FACTS DISCLOSED BY THE ASSESSEE IN THE BLOCK RETURN. FROM THE ASSESSMENT ORDER IT IS NOT REVEALE D THAT THE AO HAS TREATED THE RETURN FILED BY THE ASSESSEE AS INVALID OR NON-EST. THUS, WE FIND NO FORCE IN THE ARGUMENTS OF THE LEARNED DR TH AT IN THE INSTANT CASE NO VALID RETURN WAS FILED BY THE ASSESSEE. IN THE A BOVE SITUATION, THE ISSUE IS SQUARELY COVERED BY THE DECISIONS OF THE HONBLE GAUHATI HIGH COURT IN THE CASE OF SMT. BANDANA GOGOI VS. CIT (20 07) 289 ITR 28 AND HOTEL BLUE MOON (SUPRA). IN THE SAID DECISIONS THE HONBLE HIGH COURT HAS HELD THAT A RETURN FILED FOR THE BLOCK PE RIOD CANNOT BE INTERFERED BY THE AO WITHOUT ISSUANCE OF NOTICE U/S.143(2) OF THE ACT. HENCE, RESPECTFULLY FOLLOWING THE SAME WE HAVE NO HESITATI ON TO HOLD THAT IN THIS CASE WHERE NON-ISSUANCE OF NOTICE IS AN ADMITTED FACT TH EN SUCH DEFAULT HAS INVALIDATED THE IMPUGNED ASSESSMENT. 9.5 LIKEWISE, IN THE CASE OF VASUDEV S. WADHWANI (TAX APPEAL NO.205 OF 2008, ORDER DATED 23.06.2011), THE OBSERVATION OF THE HONBLE JURISDICTIONAL HIGH COURT WAS THAT THE OMI SSIONS ON THE PART OF THE AO TO ISSUE NOTICE U/S. 143(2) COULD NOT BE A P ROCEDURAL IRREGULATORY ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 34 - THUS THE SAME IS NOT CURABLE. THE REQUIREMENT OF NO TICE U/S.143(2) COULD NOT BE DISPENSED WITH. IN THE CASE OF CIT VS. BIHARILAL AGARWAL, 346 ITR 67 (ALLD) , THIS ISSUE WAS ANSWERED IN THE MANNER THAT NO NOT ICE U/S.143(2) WAS SERVED UPON THE ASSESSEE ALTHOUGH PA RTICIPATED IN THE PROCEEDINGS BUT MATTER IS SQUARELY COVERED BY HOTEL BLUEMOON. IT WAS ALSO OPINED THAT THE QUESTION OF APPLICABILITY OF S ECTION 292BB DOES NOT ARISE IN VIEW OF MUKESH KUMAR AGARWAL, 345 ITR 29 (ALLD) BECAUSE WHEREOF AUTHORITY DID NOT HAVE A JURISDICTION TO PR OCEED FURTHER, THEN A SUCH A DEFAULT CANNOT BE CURED. 9.6 THE APPELLANT HAS CITED EVEN THE DECISION OF MUKESH KUMAR AGARWAL, 345 ITR 29 (ALLD) WHEREIN IT WAS HELD THAT SECTION 292BB IS A RULE OF EVIDENCE WHICH VALIDATES THE NOTICE IN CERT AIN CIRCUMSTANCES. IT PROVIDES THAT WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDINGS OR CO- OPERATED IN ASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE REQUIRED TO BE SERVED UPON HIM, HAS DULY BEEN SERVED UPON HIM AND THE ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION, BUT THE COU RT HAS HELD THAT THE REQUIREMENT OF NOTICE U/S.143(2) COULD NOT BE DISPE NSED WITH BECAUSE THE AUTHORITY DID NOT HAVE A JURISDICTION TO PROCEED AN D MAKING ASSESSMENT. FOLLOWING HOTEL BLUEMOON, IT WAS HELD THAT THE VERY FOUNDATION OF THE JURISDICTION IS AVAILABLE ON THE ISSUANCE OF NOTICE U/S.143(2) OF IT ACT. 9.7 LEARNED AR HAS ALSO CITED PAWAN GUPTA AND OTHERS, 318 ITR 322 (DEL) WHEREIN THE DECISION OF SMT. BANDANA GOGOI (SUPRA) WAS CONCURRED AND HELD THAT NON ISSUANCE OF NOTICE U/S. 143(2) WAS NOT A MERE IRREGULARITY BUT INVALIDATE THE ASSESSMENT. WE HAVE BEEN INFORMED THAT IN THE CASE OF VIRENDRA DEV DIXIT, 233 CTR 177 (ALLD.) , IT WAS HELD THAT ADMITTEDLY NO NOTICE U/S.143(2) WAS ISSUED AND THAT THE PERIOD OF ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 35 - LIMITATION HAD ALREADY EXPIRED, THEREFORE, SUCH NOT ICE COULD NOT BE ISSUED. ACCORDING TO HONBLE COURT THE REMAND OF THE CASE T O THE AO TO CURE THE DIFFICULTY BY ISSUING A FRESH NOTICE IS WHOLLY UNJUSTIFIED. BECAUSE THE LIMITATION FOR SERVING A NOTICE DO APPLY IN BLO CK ASSESSMENT PROCEEDINGS. EVEN, THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF PAI VINOD, 353 ITR 622 HAS OPINED THAT FOR THE PURPOSE OF CHAPTER XIVB OF IT ACT FOR DETERMINATION OF THE UNDISCLOSED INCOME IN THE BLOCK ASSESSMENT UNDER THE PROVISIONS OF SECTION 158BC, T HE PROVISIONS OF SECTION 142 AND SECTION 143 ARE APPLICABLE. VIOLATI ON OF THE MANDATORY PROVISION MAKE AN ASSESSMENT ORDER PASSED AS ILLEGA L. 10. IN THE LIGHT OF THE FOREGOING DETAILED DISCUSSI ON, WE HEREBY CONCLUDED THAT IN A SITUATION WHEN THIS TRIBUNAL BE NCH HAS GIVEN A NUMBER OF OPPORTUNITIES TO THE REVENUE DEPARTMENT T O PLACE ON RECORD ANY EVIDENCE OF EITHER EXISTENCE OR ISSUANCE/ SERVI CE OF NOTICE U/S.143(2) OF IT ACT BUT NO SUCH EVIDENCE WAS PLACED AND THAT THE ASSESSEE HIMSELF HAS COMMUNICATED TO THE AO DURING THE ASSESSMENT PR OCEEDINGS THAT THE ISSUANCE OF NOTICE U/S.143(2) IS A MANDATORY REQUIR EMENT AND THAT THE IMPUGNED NOTICE U/S.142(1) WAS NOT A NOTICE AFTER T HE RETURN WAS FILED BUT IT WAS A NOTICE SERVED ON THE ASSESSEE BEFORE THE B LOCK RETURN WAS FILED THEN UNDER THESE CIRCUMSTANCES, WE HEREBY HOLD THA T SUCH ISSUE BEING CONSISTENTLY DECIDED BY SEVERAL HONBLE HIGH COURTS / BENCHES OF I.T.TRIBUNAL IN FAVOUR OF THE ASSESSEE BY RESPECTFU LLY FOLLOWING THE DECISION OF SMT. BANDANA GOGOI (SUPRA) AS WELL AS THE DECISION OF HOTEL BLUEMOON (SUPRA) WE FIND NO REASON TO TAKE ANY OTHER VIEW BUT TO FO LLOW THE AFORE CITED PRECEDENTS. SO THE OUTCOME OF THE A BOVE DISCUSSION IS THAT THE ADDITIONAL GROUND IS HEREBY ALLOWED. CONSEQUENT THEREUPON THE ITA NO.306 & 313/AHD/2002 M/S. M. KANTILAL & CO. LTD. VS. DCIT, CENTRAL CIRCL E-2, SURAT. - 36 - OTHER GROUNDS ON THE QUANTUM ADDITIONS OF THE ASSES SMENT NEED NOT TO BE ADJUDICATED UPON, BECAUSE THE ASSESSMENT ITSELF IS HEREBY QUASHED. 11. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED , CONSEQUENTLY REVENUES APPEAL STANDS DISMISSED. SD/- SD/- (ANIL CHATURVEDI) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD; DATED 29/04/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD