Shri Ashok Anand, Mumbai V. ACIT CC 2, Nashik

ITSSA 578/MUM/2003

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0644 (ITAT-PUNE)
• Duration Of Justice: 11 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-11-2012
• Assessment Year: misc
• Appeal Filed On: 10-07-2003
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS M S VERMA
• Assessee Lawyers: VIJAY C KOTHARI
• Keywords: Invalid notice; Search and seizure; Block assessment
• Section: 234B; 148; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER IT SS 578 / MUM /20 03 BLO C K PERIOD : 01 - 04 - 1990 - 11 - 08 - 2000 LATE SHRI ASHOK ANAND, THRO UGH LEGAL HEIRS 1. MRS. SHEEEL ANAND, 2. MS. NEHA ASHOK ANAND, 3. MR. AKSHAY ASHOK ANAND, 4. MRS. MEETU ASHOK ANAND, C/O AGARWAL VIJAY & ASSOCIATES, 503 JOLLY BHAWAN NO. 1 NEW MARINE LINES, MUMBAI - 400020 VS. ASST. C OMM. OF INCOME TAX, CENTRAL CIRCLE 2, NASIK (APPELLANT) (RESPONDENT) PAN NO. A DWPA3525F REVENUE BY: MRS. M.S. VERMA ASSESSEE BY: SHRI VIJAY C. KOTHARI ORDER PER R.S . PADVEKAR , JM : - TH IS APPEAL IS FILED BY THE ASSESSEE CHALLENGING THE IMPUGNED ORDE R S OF THE LD. CIT(A) - I, NAGPUR DATED 28 - 03 - 2003 AND THIS APPEAL IS ARISING OUT OF BLOCK ASSESSMENT FRAMED U/S. 158BC R.W.S. 144 OF THE INCOME - TAX ACT FOR BLOCK PERIOD 01 - 04 - 1990 - 11 - 08 - 2000. THIS APPEAL WAS FILED IN THE ITAT, MUMBAI BENCHES, MUMBAI AND VID E ORDER OF HON'BLE PRESIDENT, INCOME TAX APPELLATE TRIBUNAL, MUMBAI DATED 09 - 02 - 2012 , T HIS APPEAL WAS TRANSFER RED TO ITAT, PUNE BENCHES, PUNE ON THE APPLICATION MADE BY THE LEGAL HEIRS OF THE DECEASED ASSESSEE DATED 27 - 04 - 2011. THE ASSESSEE HAS TAKEN THE LEGAL GROUNDS AS WELL AS GROUNDS ON MERIT. WE FIRST DECIDE THE LEGAL GROUNDS TAKEN BY THE ASSESSEE. GROUND NOS. 1 AND 2 ARE THE LEGAL GROUNDS WHICH READ AS UNDER: 2 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ORDER OF THE ACIT EVEN THOUGH THE ORDER WAS BAD IN LAW AND VOID AB INITIO AS THE SAME HAD BEEN FRAMED IN PURSUANCE OF AN INVALID NOTICE ISSUE U/S. 158BC. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ORDER OF THE ACIT EVEN THOUGH THE ORDER WAS BAD IN LAW AND VOID AB INITIO AS THE SAME HAD BEEN FRAMED IN PURSUANCE OF A NOTICE ISSUE U/S. 143(2) WHICH WAS SERVED ON THE APPELLANT BEYOND THE PRESCRIBED PERIOD OF ONE YEAR. 2. IN GROUND NO. 1, THE ASSESSEE HAS CHALLENGED THE LEGALITY AND VALIDITY OF THE ASSESSMENT FRAMED IN PURSUANCE OF THE NOTICE ISSUED U/S. 158BC OF THE INCOME - TAX ACT. THE FACTS WHICH REVEALED FROM THE RECORD ARE AS UNDER. THERE WAS A SEARCH AND SURVEY ACTION AT THE RESIDENTIAL AS WELL AS BUSINESS PREMISES OF THE DECEASED ASSESSE E AND THE BUSINESS PREMISES OF M/S. DEVS SUPER SHOPPE PVT. LTD. AND OTHER CONCERN OF THE ANAND GROUP AT DEVS ARCADE, SAMARTH NAGAR, NASIK ON 11 - 08 - 2000. IN CON SEQUENCE OF SEARCH AND SEIZURE ACTION, THE ASSESSING OFFICER ISSUE D THE NOTICE U/S. 158BC DATED 30 - 11 - 2000 WHICH WAS SERVED ON THE DECEASED ASSESSEE ON 09 - 12 - 2000. THAT WOULD MEAN THAT THE DECEASED ASSESSEE WAS REQUIRED TO FILE RETURN FOR THE BLOCK PERIOD ON 24 - 12 - 2000. ON 22 - 12 - 2000, THE DECEASED ASSESSEE FILED AN APPLICATION SEEKING FURTHER EXTEN SION OF TIME OF ONE MONTH TO COMPLY WITH THE NOTICE AND AS PER THE REQUEST OF THE DECEASED ASSESSEE THE THEN DCIT (ASSESSING OFFICER) HAS GRANTED TIME UP TO 22 - 01 - 2001 TO FILE THE BLOCK RETURN. THE DECEASED ASSESSEE FILED RETURN OF INCOME HIS BLOCK PERIOD ON 22 - 01 - 2001 DECLARING NIL UNDISCLOSED INCOME. THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT U/S. 158BC DETERMINING THE TOTAL UNDISCLOSED INCOME OF THE DECEASED ASSESSEE AT RS.3,39,63,210/ - . THE SAID UNDISCLOSED INCOME INCLUDES ADDITIONS OF RS.1,7 5,80,566/ - ON ACCOUNT OF SUBSTANTIVE BASIS FOR THE A.Y. 2001 - 2002 AND ON THE PROTECTIVE BASIS AN ADDITION IS 3 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI ALSO MADE ON T HE SAID ACCOUNT IN THE HANDS OF SHRI RAJESH ANAND. THE ASSESSEE RAISED THE OBJECTION BEFORE THE LD. CIT(A) THAT IN THE NOTICE ISSUED TO THE ASSESSEE U/S. 158BC, THE ASSESSEE WAS NOT GIVEN THE LEGAL TIME OF MINIMUM 15 DAYS TO FILE HIS RETURN OF INCOME. IN THE NOTICE ISSUE U/S. 158BC, IT WAS MENTIONED THAT TO FILE RETURN FOR THE BLOCK PERIOD WITHIN 15 DAYS . AS PER THE CONTENTION OF T HE ASSESSEE EVEN IF THE FURTHER EXTENSION WAS GRANTED TO THE ASSESSEE BUT THE DEFECT IN THE ORIGINAL NOTICE C OULD NOT BE SAID TO BE CURED. THE LD. CIT(A) HAS NOT ACCEPTED THE OBJECTION OF THE ASSESSING OFFICER AND NOW, THE ASSESSEE IS IN APPEAL BEFORE US ON THIS GROUND. 3. THE LD. COUNSEL POINTED OUT THAT THE REVENUE HAS ALSO FILED THE APPEAL BEING ITA NO. 735/PN/2003 WHICH WAS DISPOSED OF BY THE TRIBUNAL EX - PARTE VIDE ORDER DATED 20 - 08 - 2006 AND THE MATTER WAS BACK REMITTED TO THE FILE OF THE CIT(A) FOR F RESH DISPOSAL. HE ALSO SUBMITTED THAT THE SAID APPEAL WAS DECIDED WITHOUT PRESENCE OF THE ASSESSEE ON 25 - 08 - 2006 AND SO FAR AS THE LEGAL ISSUE IN THIS APPEAL IS CONCERNED IT IS LEGAL ISSUE AND IT CAN BE INDEPENDENTLY DECIDED. 4 . WE HAVE HEARD THE RIVAL S UBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE LD. COUNSEL SUBMITS THAT NOWHERE THERE IS A DISPUTE IN RESPECT OF FACTUAL ASPECT THAT SO FAR AS THE ORIGINAL NOTICE ISSUE TO THE DECEASED ASSESSEE U/S. 158BC DATED 30 - 11 - 2000, IT WAS MENTIONED THAT TH E ASSESSEE SHOULD FILE THE RETURN FOR THE BLOCK PERIOD WITHIN 15 DAYS FROM THE DATE OF RECEIPT OF NOTICE. HE SUBMITS THAT SEC. 158BC THOUGH LAYS DOWN A PROCEDUR E BUT THE ASSESSING OFFICER ASSUME S THE JURISDICTION ONLY WHEN THE NOTICE IS ISSUE TO THE ASSE SSEE DIRECTING THE ASSESSEE TO FILE THE RETURN OF INCOME FOR THE BLOCK PERIOD AS IT THEN WAS. HE SUBMITS THAT THIS ISSUE HAS COME FOR THE CONSIDERATION BEFORE THE HON'BLE ITAT, J BENCH, MUMBAI IN THE CASE OF SHRI RAVENDRA M. PATIL, MUMBAI VS. DY. CIT, CEN TRAL CIRCLE - 1, THANE/MUMBAI BEING ITSS 143 & 4 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI 196/MUM/2005 ORDER DATED 29 - 08 - 2012. HE SUBMITS THAT IN THE CASE OF ACIT AND ANOTHER VS. HOTEL BLUE MOON 321 ITR 362 (SC) THE HON'BLE SUPREME COURT HAS EXPLAINED THAT THE ASSESSING OFFICER ASSUME S THE JURISDICT ION ONLY AFTER THE NOTICE U/S. 158BC HAS BEEN ISSUED TO THE ASSESSEE AND HENCE, ISSUANCE OF THE NOTICE IS NOT PROCEDURAL IT IS A LEGAL MANDATORY REQUIREMENT FOR ASSUMPTION OF THE JURISDICTION. HE SUBMITS THAT THE OBSERVATIONS MADE BY THE HON'BLE HIGH COUR T OF BOMBAY IN THE CASE OF SHIRISH MADHUKAR DALVI VS. ACIT AND OTHERS 287 ITR 242 (BOM) THAT NOTICE U/S. 158BC(A) ONLY PROVIDES FOR PROCEDURE TO BE ADOPTED FOR BLOCK ASSESSMENT AND IT DOES NOT CONFER JURISDICTION TO ASSES TO THE ASSESSING OFFICER IS NO MOR E GOOD LAW AS IN THE CLEAR TERMS THE HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA) HAS HELD THAT THE NOTICE TO BE ISSUED U/S. 158BC(A) IS A MANDATORY REQUIREMENT AND THE SAID NOTICE IS THE VERY FOUNDATION FOR JURISDICTION OF THE ASSESSING OF FICER TO ASSESS THE SEARCH ED PERSON. THE HON'BLE SUPREME COURT HAS ALSO OBSERVED THAT THE SAID SECTION ITSELF PRESCRIBED THE MINIMUM TIME LIMIT OF 15 DAYS FOR THE COMPLIANCE OF THE SAID NOTICE. THE LD. COUNSEL ALSO PLACED HIS RELIANCE ON THE DECISION OF THE HON'BLE HIGH COURT OF KARNATKA IN THE CASE OF CIT AND OTHERS VS. M/S. MICRO LABS LTD. AND OTHERS 348 ITR 75. THE LD. COUNSEL PLEADED FOR QUASHING THE ASSESSMENT ORDER. 5 . PER CONTRA, THE LD. CIT (DR) SUBMITS THAT THE HON'BLE JURISDICTIONAL HIGH COURT HAS ALREADY CONSIDERED THE NATURE OF NOTICE TO BE ISSUE D U/S. 158BC(A) OF THE ACT IN CONSEQUENCE OF SEARCH AND SEIZURE OPERATION U/S. 132(1) OF THE ACT IN THE CASE OF SHIRISH MADHUKAR DALVI (SUPRA) . LD. CIT (DR) SUBMITS THAT DECISION IN THE CASE OF M/S. MICRO LABS LTD. (SUPRA) IS NOT DECISION OF THE JURISDICTIONAL HIGH COURT BUT DECISION IN THE CASE OF SHIRISH MADHUKAR DALVI (SUPRA) IS A DECISION OF THE JURISDICTIONAL HIGH COURT AND HENCE, THE SAID DECISION IS BINDING. THE LD. CIT (DR) SUPPORTED THE DECI SION OF THE AUTHORITIES BELOW. 5 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI 6 . WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. T H OUGH THE LEGAL ISSUE RAISED BY THE ASSESSEE NEEDS TO BE EXAMINED IN THE NARROW FACTS BUT THE SAID ISSUE GOES TO THE ROOT OF THE ENTIRE ASSESS MENT FRAMED BY THE ASSESSING OFFICER. IN THIS CASE IT IS NOT IN DISPUTE THAT THE ASSESSING OFFICER ISSUED THE NOTICE U/S. 158BC(A) DATED 30 - 11 - 2000 WHICH WAS SERVED ON THE ASSESSEE ON 09 - 12 - 2000. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE SOUGHT THE FUR THER TIME OF ONE MONTH FOR FILING THE RETURN FOR THE BLOCK PERIOD AND THE SAME WAS GRANTED AND ACCORDING TO THE EXTENDED TIME LIMIT THE ASSESSEE FILED HIS RETURN FOR THE BLOCK PERIOD ON 22 - 01 - 2001. IN THE NOTICE, IT WAS MENTIONED THAT THE ASSESSEE SHOULD FILE HIS RETURN FOR THE BLOCK PERIOD WITHIN 15 DAYS FROM THE DATE OF RECEIPT OF THE SAID NOTICE. NOW, THE LEGAL ISSUE BEFORE US IS WHETHER THE NOTICE ISSUED BY THE ASSESSING OFFICER U/S. 158BC(A) DATED 03 - 11 - 2000 COMPLY WITH THE MANDATORY REQUIREMENT OF THE SAID STATUTORY PROVISION. ONE OF THE IMPORTANT REQUIREMENTS IS THAT THE NOTICE MUST BE SERVED ON THE SEARCH ED PERSON AND THE SECOND MANDATORY REQUIREMENT IS THAT HE MUST BE GIVEN MINIMUM 15 DAYS TIME , AS PER THE PROVISIONS APPLICABLE AT THAT POINT O F TIME , TO THE ASSESSEE FOR FILING HIS RETURN FOR THE BLOCK PERIOD. 7 . IN THE CASE OF HOTEL BLUE MOON (SUPRA) THE HON'BLE SUPREME COURT HAS EXAMINED WHETHER THE NOTICE U/S. 143 (2) OF THE INCOME - TAX ACT WAS REQUIRED TO BE SERVED ON THE ASSESSEE WITHIN TH E PRESCRIBED TIME LIMIT GIVEN WHILE FRAMING THE BLOCK ASSESSMENT IN CONSEQUENCE OF THE SEARCH AND SEIZURE ACTIONS WHICH ARE APPLICABLE UP TO 30 - 06 - 2003. THE HON'BLE SUPREME COURT AFTER EXAMINING THE ENTIRE SCHEME OF THE ASSESSMENT TO BE FRAMED IN CONSEQUE NCE OF THE SEARCH AND SEIZURE ACTIONS, WHEN SEARCH INITIATED OR EQUATION MADE AFTER 30 - 06 - 1995 BUT BEFORE THE 01 - 06 - 2003 AND HAS HELD AS U NDER: 6 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI 10. SEC. 158BA IS AN ENABLING SECTION, EMPOWERING THE AO, TO ASSESS 'UNDISCLOSED INCOME' AS A RESULT OF SEARCH INITIATED OR REQUISITION MADE AFTER 30TH JUNE, 1995, IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER AND TAX THE SAME AT THE FIXED RATE SPECIFIED IN S. 113. SEC. 158BB PROVIDES THE METHODOLOGY FOR COMPUTATION OF UNDISCLOSED INCOME OF THE BLOCK PERIOD. SE C. 158BC PRESCRIBES THE PROCEDURE FOR MAKING THE BLOCK ASSESSMENT OF THE SEARCHED PERSON. SEC. 158BD ENABLES ASSESSMENT OF ANY PERSON, OTHER THAN THE SEARCHED PERSON. SEC. 158BE SETS THE TIME - LIMITS FOR COMPLETION OF THE BLOCK ASSESSMENTS. SEC. 158BF PROVI DES FOR IMMUNITY FROM LEVY OF INTEREST UNDER SS. 234A, 234B AND 234C AND PENALTIES UNDER SS. 271(1)(C), 271A AND 271B. SEC. 158BFA PROVIDES FOR LEVY OF INTEREST AND PENALTY IN CASES OF SEARCH ON OR AFTER 1ST JAN., 1997. SEC. 158BG SPECIFIES THE AUTHORITIES COMPETENT TO MAKE THE BLOCK ASSESSMENT. SEC. 158BH PROVIDES FOR APPLICATION OF ALL THE OTHER PROVISIONS OF THIS ACT, EXCEPT THOSE AS PROVIDED IN CHAPTER XIV - B. SEC. 158BI PROVIDES FOR ABOLITION OF THE SCHEME IN CASES OF SEARCH AFTER 31ST MAY, 2003. 11. T HE SCHEME OF BLOCK ASSESSMENT HAS BEEN EXPLAINED BY CBDT IN PARA 39.3 OF CIRCULAR NO. 717, DT. 14TH AUG., 1995 [(1995) 127 CTR (ST) 21 : (1995) 215 ITR 70 (ST)]. WE MAY ONLY NOTICE CL. (E) OF THE CIRCULAR WHICH PROVIDES FOR THE PROCEDURE FOR MAKING BLOCK A SSESSMENT. OMITTING WHAT IS NOT NECESSARY FOR THE PURPOSE OF THIS CASE, CL. (E) IS EXTRACTED AND IT READS AS UNDER: '(E) PROCEDURE FOR MAKING BLOCK ASSESSMENT : (I) THE AO SHALL SERVE A NOTICE ON SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH TIME, NOT BEING LESS THAN 15 DAYS, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN IN THE PRESCRIBED FORM AND VERIFIED IN THE SAME MANNER AS A RETURN UNDER CL. (I) OF SUB - S. (1) OF S. 142 SETTING FORTH HIS TOTAL INCOME INCLUDING UNDISCLOSED INCOME FOR THE BLOCK PERIOD. THE OFFICER SHALL PROCEED TO DETERMINE THE UNDISCLOSED INCOME OF THE BLOCK PERIOD AND THE PROVISIONS OF S. 142, SUB - SS. (2) AND (3) OF S. 143 AND S. 144 SHALL APPLY ACCORDINGLY.' 12. CHAPTER XIV - B PROVIDES FOR AN ASSESSMENT OF THE UNDISCLOSED INCOME UNEAR THED AS A RESULT OF SEARCH WITHOUT AFFECTING THE REGULAR ASSESSMENT MADE OR TO BE MADE. SEARCH IS THE SINE QUA NON FOR THE 7 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI BLOCK ASSESSMENT. THE SPECIAL PROVISIONS ARE DEVISED TO OPERATE IN THE DISTINCT FIELD OF UNDISCLOSED INCOME AND ARE CLEARLY IN ADDITI ON TO THE REGULAR ASSESSMENTS COVERING THE PREVIOUS YEARS FALLING IN THE BLOCK PERIOD. THE SPECIAL PROCEDURE OF CHAPTER XIV - B IS INTENDED TO PROVIDE A MODE OF ASSESSMENT OF UNDISCLOSED INCOME, WHICH HAS BEEN DETECTED AS A RESULT OF SEARCH. IT IS NOT INTEND ED TO BE SUBSTITUTE FOR REGULAR ASSESSMENT. ITS SCOPE AND AMBIT IS LIMITED IN THAT SENSE TO MATERIALS UNEARTHED DURING SEARCH. IT IS IN ADDITION TO THE REGULAR ASSESSMENT ALREADY DONE OR TO BE DONE. THE ASSESSMENT FOR THE BLOCK PERIOD CAN ONLY BE DONE ON T HE BASIS OF EVIDENCE FOUND AS A RESULT OF SEARCH OR REQUISITION OF BOOKS OF ACCOUNTS OR DOCUMENTS AND SUCH OTHER MATERIALS OR INFORMATION AS ARE AVAILABLE WITH THE AO. THEREFORE, THE INCOME ASSESSABLE IN BLOCK ASSESSMENT UNDER CHAPTER XIV - B IS THE INCOME N OT DISCLOSED BUT FOUND AND DETERMINED AS THE RESULT OF SEARCH UNDER S. 132 OR REQUISITION UNDER S. 132A OF THE ACT. 13. SEC. 158BC STIPULATES THAT THE CHAPTER WOULD HAVE APPLICATION WHERE SEARCH HAS BEEN EFFECTED UNDER S. 132 OR ON REQUISITION OF BOOKS OF ACCOUNTS, OTHER DOCUMENTS OR ASSETS UNDER S. 132A. BY MAKING THE NOTICE ISSUED UNDER THIS SECTION MANDATORY, IT MAKES SUCH NOTICE THE VERY FOUNDATION FOR JURISDICTION. SUCH NOTICE UNDER THE SECTION IS REQUIRED TO BE SERVED ON THE PERSON WHO IS FOUND TO BE HAVING UNDISCLOSED INCOME. THE SECTION ITSELF PRESCRIBES THE TIME - LIMIT OF 15 DAYS FOR COMPLIANCE. IN RESPECT OF SEARCHES ON OR AFTER 1ST JAN., 1997, THE TIME - LIMIT MAY BE GIVEN UP TO 45 DAYS INSTEAD OF 15 DAYS FOR COMPLIANCE. SUCH NOTICE IS PRESCRIBED UN DER R. 12(1A) WHICH IN TURN PRESCRIBES FORM 2B FOR BLOCK RETURN. 8 . IN THE CASE OF M/S. MICRO LABS LTD. (SUPRA) AGAIN THE ISSUE OF REQUIREMENT OF GIVING MINIMUM 15 DAYS TIME TO THE ASSESSEE IN THE NOTICE ISSUED U/S. 158BC(A) OF THE ACT HAD COME FOR THE CONSIDERATION AND IT IS HELD AS UNDER: 13. RELIANCE WAS ALSO PLACED BY THE ASSESSEE ON THE JUDGMENT IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX AND ANOTHER VS . HOTEL BLUE MOON REPORTED IN [2010] 321 ITR PAGE 362 (SC) TO CONTEND THAT THE NOTICE UNDE R SECTION 158BC DEALING WITH THE BLOCK ASSESSMENT MAKES SUCH A NOTICE THE VERY FOUNDATION FOR JURISDICTION. 8 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI THAT SUCH A NOTICE IS REQUIRED TO BE SERVED ON THE PERSON WHO IS FOUND TO HAVE UNDISCLOSED INCOME. RELIANCE WAS ALSO PLACED ON THE UNREPORTED JUDG MENT OF THIS COURT IN ITA NO. 21/2003 C/W ITA NO. 22/2003 DISPOSED OFF ON 03.04.2008, WHEREIN IT WAS HELD THAT WHEN ONCE THE NOTICE IS HELD TO BE INVALID, THE ENTIRE PROCEEDINGS WOULD BECOME VOID FOR WANT OF JURISDICTION. FURTHER RELIANCE WAS ALSO PLACED ON THE UNREPORTED JUDGMENT OF THIS COURT IN THE CASE OF M/S. WINTER CARE PRIVATE LTD., VS. DEPUTY COMMISSIONER OF INCOME - TAX DISPOSED OFF ON 15.02.1993 PASSED IN W.P. NO. 33832/1992, WHEREIN IT WAS HELD THAT WHEN THE NOTICE DID NOT CONFIRM WITH THE REQUIRE MENTS OF PROVISIONS OF THE ACT, THE PROCEEDING REQUIRES TO BE QUASHED. 14. THE PROCEEDINGS UNDER CHAPTER XIV - 8 AND THE PROVISIONS OF SECTION 139 ARE DIFFERENT. A RETURN FILED UNDER SECTION 139 IS A VOLUNTARY RETURN. A RETURN UNDER CHAPTER XIV - B CANNOT BE FILED VOLUNTARILY. IT IS ONLY WHEN A NOTICE UNDER SECTION 158BC IS VALIDLY ISSUED, ONLY THEN A RETURN COULD BE FILED. IT IS NOT IN EVERY CASE THAT A NOTICE UNDER SECTION 158BC WOULD BE ISSUED BY THE REVENUE. HOWEVER, AS AND WHEN VALIDLY ISSUED, IT IS ONLY THEN THAT A RETURN COULD BE FILED. WHEN ANY SEARCH HAS BEEN CONDUCTED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENT OR ASSETS ARE REQUISITIONED UNDER SECTION 132A, IT IS ONLY THEN, THE ASSESSING OFFICER SHALL PROCEED TO ASSESS THE UNDISCLOSED INC OME. THEREFORE, SECTION 158 BA PROVIDES FOR JURISDICTION TO THE ASSESSING OFFICER TO ASSESS THE UNDISCLOSED INCOME IN ACCORDANCE WITH CHAPTER XIV - B. SECTION 158BA(2) IS A CHARGING SECTION, 158BB PROVIDES FOR COMPUTATION OF UNDISCLOSED INCOME FOR THE BLOCK PERIOD AND 158BC PROVIDES FOR PROCEDURE FOR BLOCK ASSESSMENT. THEREFORE, A NOTICE UNDER SECTION 158BC CANNOT BE EQUATED WITH THAT OF NOTICE UNDER SECTION 148. A NOTICE UNDER SECTION 158 BC PROVIDES FOR A PROCEDURE TO BE ADOPTED FOR BLOCK ASSESSMENT. UN DER THIS PROCEDURE ENVISAGED, THE ASSESSING OFFICER SHALL SERVE A NOTICE REQUIRING THE ASSESSEE TO FURNISH HIS RETURN WITHIN SUCH TIME NOT BEING LESS THAN 15 DAYS BUT NOT MORE THAN 45 DAYS AS SPECIFIED IN THE NOTICE. THEREFORE, THE TIME TO BE GRANTED TO T HE ASSESSE IN TERMS OF SECTION 158BC IS A MINIMUM OF 15 DAYS AND A MAXIMUM OF 45 DAYS. IF THE SAID PERIOD OF TIME IS NOT GRANTED, THE NOTICE IS INVALID RENDERING THE ENTIRE PROCEEDINGS AS WITHOUT JURISDICTION. ADMITTEDLY IN THIS CASE, THE 9 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI NOTICE UNDER SE CTION 158BC CALLS UPON THE ASSESSEE TO SUBMIT ITS RETURN OF INCOME WITHIN A PERIOD OF 15 DAYS. WITHIN A PERIOD OF 15 DAYS IS LESS THAN 15 DAYS. THEREFORE, THE MANDATORY PERIOD OF TIME AS STIPULATED UNDER SECTION 158 BC HAS NOT BEEN COMPLIED WITH. THE NOTICE THEREFORE, IS INVALID. AN INVALID NOTICE CANNOT CONFER ANY JURISDICTION ON THE AUTHORITY. HENCE, THE ENTIRE PROCEEDINGS ARE BAND IN LAW. THE NOTICE IS AB INITIO VOID. 9 . IN THE CASE OF SHRI RAVENDRA M. PATIL (SUPRA) THE ITAT, J BENCH, MUMBAI AF TER CONSIDERING THE DECISIONS OF THE HOTEL BLUE MOON (SUPRA), SHRI SHIRISH MADHUKAR DALVI (SUPRA) AND M/S. MICRO LABS LTD. (SUPRA) HAS HELD AS UNDER: 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUT E THAT NOTICE ISSUED BY THE AO U/S. 158BC REQUIRING THE ASSESSEE TO FURNISH THE RETURN IN THE PRESCRIBED FORM NO.2B WITHIN 15 DAYS FROM THE SERVICE OF NOTICE. WE REPRODUCE RELEVANT PART OF THE NOTICE DATED 05.02.2002 ISSUED U/S. 158BC AS UNDER: 'THE RETURN SHOULD BE IN THE PRESCRIBED FORM 2B AND BE DELIVERED IN THIS OFFICE WITHIN 15 DAYS FROM THE SERVICE OF THIS NOTICE, DULY VERIFIED AND SIGNED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 140 OF THE INCOME - TAX ACT, 1961.' 8. THE LD. DR HAS ALSO NOT DISPUTED THIS FACT THAT THE TIME PERIOD MENTIONED IN THE SAID NOTICE IS WITHIN 15 DAYS. SUB - CLAUSE (II) OF CLAUSE (A) OF SEC. L58BC STIPULATES SERVICE OF A NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH RETURN IN THE PRESCRIBED FORM WITHIN SUCH TIME NOT BEING LESS THAN 15 DAYS BUT NOT MORE THAN 45 DAYS. THE RELEVANT PART OF SEC. 158BC READS AS UNDER: 'WHERE ANY SEARCH HAS BEEN CONDUCTED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS ARE REQUISITIONED UNDER SECTION 132A, IN THE CASE OF ANY PERSON, THEN, (A) THE ASSESSING OFFICER SHALL 10 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI (I) IN RESPECT OF SEARCH INITIATED OR BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED AFTER THE 30TH DAY OF JUNE, 1995, BUT BEFORE THE 1ST DAY OF JANUARY, 1997, SERVE A NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITHIN 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 THE 1ST DAY OF JANUARY, 1997, SERVE A NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH TIME NOT BEING LESS THAN FIFTEEN DAYS BUT NOT MORE THAN FORTY - FIVE DAYS, AS MAY BE SPECIFIED IN THE NOTICE A RETURN IN THE PRESCRIBED FORM AND VERIFIED IN THE SAME MANNER AS A RETURN UNDER CLAUSE (I) OF SUB - SECTION (1) OF SECTION 142 , SETTING FORTH HIS TOTAL INCOME INCLUDING THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD.' 9. THUS, IT IS CLEAR THAT THE TIME PERIOD TO BE ALLOWED FOR FURNISHING THE RETURN OF INCOME IS NOT LESS THAN 15 DAYS WHICH MEANS THE TIME PERIOD MUST BE MORE THAN 15 D AYS BUT NOT MORE THAN 45 DAYS. THE WORDS USED IN THE PROVISION 'IS NOT BEING LESS THAN 15 DAYS' AND NOT 'WITHIN 15 DAYS'. THEREFORE, THERE IS A CLEAR DIFFERENCE BETWEEN THE TIME PERIOD ALLOWED FOR FURNISHING THE RETURN WITHIN 15 DAYS AND NOT LESS THAN 15 D AYS, WHICH MEANS MORE THAN 15 DAYS WITH A RIDER OF 45 DAYS. THE TERM NOT LESS THAN 15 DAYS HAS BEEN CLARIFIED BY THE CBDT IN CIRCULAR NO.717 IN PARA 39.3(E) AS UNDER: '(E) PROCEDURE FOR MAKING BLOCK ASSESSMENT: THE ASSESSING OFFICER SHALL SERVE A NOTICE ON SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH TIME, NOT BEING LESS THAN 15 DAYS, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN IN THE PRESCRIBED FORM AND VERIFIED IN THE SAME MANNER AS A RETURN UNDER CLAUSE (I) OF SUB - SECTION (1) OF SECTION 142 SETTING F ORTH HIS TOTAL INCOME INCLUDING UNDISCLOSED INCOME FOR THE BLOCK PERIOD. THE OFFICER SHALL PROCEED TO DETERMINE THE UNDISCLOSED INCOME OF THE BLOCK PERIOD AND PROVISIONS OF SECTION 142, SUB - SECTIONS (2) AND (3) OF SECTION 143 AND SECTION 144 SHALL APPLY A CCORDINGLY. THE ASSESSING OFFICER SHALL NOT BE REQUIRED TO ISSUE ANY NOTICE UNDER SECTION 148 FOR THE PURPOSE OF PROCEEDINGS UNDER THIS CHAPTER. THOUGH THE BLOCK PERIOD CAN 11 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI BE EXTENDED UPTO 10 YEARS IN THE CASE WHERE THE ASSESSEE HAS NOT DISCLOSED UNDIS CLOSED INCOME IN ANYONE OR MORE OF THE PREVIOUS YEARS IN THE BLOCK PERIODS AND THE ASSESSING OFFICER ALSO DOES NOT FIND ANY MATERIAL INDICATING UNDISCLOSED INCOME IN ANY ONE OR MORE OF THE PREVIOUS YEARS COMPRISED IN THE BLOCK PERIOD, IT WILL NOT BE NECE SSARY TO DO THE EXERCISE OF COMPUTING THE UNDISCLOSED INCOME FOR THE RELEVANT YEARS AND THE EXERCISE MAY BE LIMITED TO THE YEARS IN RESPECT OF WHICH THE UNDISCLOSED INCOME HAS BEEN FOUND. ON DETERMINATION OF THE UNDISCLOSED INCOME OF THE BLOCK PERIOD, THE ASSESSING OFFICE SHALL ISSUE AN ORDER OF ASSESSMENT AND DETERMINE THE DEMAND PAYABLE BY HIM ON THE BASIS OF SUCH ASSESSMENT. THE ASSETS SEIZED IN THE COURSE OF SEARCH OR TAKEN POSSESSION OF AS A RESULT OF REQUISITION UNDER SECTION 132A SHALL BE RETAINED TO THE EXTENT NECESSARY AND SHALL BE DEALT WITH IN THE MANNER LAID DOWN UNDER SECTION 132B.' 10. FURTHER, THE HON'BLE KARNATAKA HIGH COURT AFTER THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA) HAS CONSIDERED AND DECIDED AN IDEN TICAL ISSUE IN CASE OF CIT VS. MICRO LABS LTD. (SUPRA) IN PARA 13 & 14 AS UNDER: '13. RELIANCE WAS ALSO PLACED BY THE ASSESSEE ON THE JUDGMENT IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX AND ANOTHER VS. HOTEL BLUE MOON REPORTED IN [2010] 321 ITR 36 2 (SC) TO CONTEND THAT THE NOTICE UNDER SECTION 158BC DEALING WITH THE BLOCK ASSESSMENT MAKES SUCH A NOTICE IS REQUIRED TO BE SERVED ON THE PERSON WHO IS FOUND TO HAVE UNDISCLOSED INCOME. RELIANCE WAS ALSO PLACED ON THE UNREPORTED JUDGMENT OF THIS COURT I N ITA NO.21/2003 C/W ITA NO. 22/2003 DISPOSED OFF ON 03.04.2008, WHEREIN IT WAS HELD THAT WHEN ONE THE NOTICE IS HELD TO BE INVALID, THE ENTIRE PROCEEDINGS WOULD BECOME VOID FOR WANT OF JURISDICTION. FURTHER RELIANCE WAS ALSO PLACED ON THE UNREPORTED JUDG MENT OF THIS COURT IN THE CASE OF M/S. WINTER CARE PRIVATE LTD., VS. DEPUTY COMMISSIONER OF INCOME - TAX, DISPOSED OFF ON 15.02.1993 PASSED IN W.P. NO. 33832/1992, WHEREIN IT WAS HELD THAT WHEN THE NOTICE DID NOT CONFORM WITH THE 12 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI REQUIREMENTS OF PROVISIONS O F THE ACT, THE PROCEEDING REQUIRES TO BE QUASHED. 14. THE PROCEEDINGS UNDER CHAPTER XIV - B AND THE PROVISIONS OF SECTION 139 ARE DIFFERENT. A RETURN FILED UNDER SECTION 139 IS A VOLUNTARY RETURN. A RETURN UNDER CHAPTER XIV - B CANNOT BE FILED VOLUNTARILY. I T IS ONLY WHEN A NOTICE UNDER SECTION 158BC WOULD BE ISSUED BY THE REVENUE. HOWEVER, AS AND WHEN VALIDITY ISSUED, IT IS ONLY THEN THAT A RETURN COULD BE FILED. WHEN ANY SEARCH HAS BEEN CONDUCTED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENT OR A SSETS ARE REQUISITIONED UNDER SECTION 132A, IT IS ONLY THEN, THE ASSESSING OFFICER SHALL PROCEED TO ASSESS THE UNDISCLOSED INCOME. THEREFORE, SECTION 158 BA PROVIDES FOR JURISDICTION TO THE ASSESSING OFFICER TO ASSESS THE UNDISCLOSED INCOME IN ACCORDANCE W ITH CHAPTER XIV - B. SECTION 158 BA(2) IS A CHARGING SECTION, 158BB PROVIDES FOR COMPUTATION OF UNDISCLOSED INCOME FOR THE BLOCK PERIOD AND 158 BC PROVIDES FOR PROCEDURE FOR BLOCK ASSESSMENT. THEREFORE, A NOTICE UNDER SECTION 158 BC PROVIDES FOR A PROCEDU RE TO BE ADOPTED FOR BLOCK ASSESSMENT. UNDER THIS PROCEDURE ENVISAGED, THE ASSESSING OFFICER SHALL SERVE A NOTICE REQUIRING THE ASSESSEE TO FURNISH HIS RETURN WITHIN SUCH TIME NOT BEING LESS THAN 15 DAYS BUT NOT MORE THAN 45 DAYS AS SPECIFIED IN THE NOTIC E. THEREFORE, THE TIME TO BE GRANTED TO THE ASSESSEE IN TERMS OF SECTION 158 BC IS A MINIMUM OF 15 DAYS AND A MAXIMUM OF 45 DAYS. IF THE SAID PERIOD OF TIME IS NOT GRANTED, THE NOTICE IS INVALID RENDERING THE ENTIRE PROCEEDINGS AS WITHOUT JURISDICTION. ADMITTEDLY IN THIS CASE, THE NOTICE UNDER SECTION 158BC CALLS UPON THE ASSESSEE TO SUBMIT ITS RETURN OF INCOME 'WITHIN A PERIOD OF 15 DAYS'. WITHIN A PERIOD OF 15 DAYS IS LESS THAN 15 DAYS. THEREFORE, THE MANDATORY PERIOD OF TIME AS STIPULATED UNDER SECT ION 158 BC HAS NOT BEEN COMPLIED WITH. THE NOTICE THEREFORE IS INVALID. AN INVALID NOTICE CANNOT CONFER ANY JURISDICTION ON THE AUTHORITY. HENCE, THE ENTIRE PROCEEDINGS ARE BAD IN LAW. THE NOTICE IS AB - INITIO VOID. ' 11. THE DECISION OF HON'BLE JURISDICTI ONAL HIGH COURT IN THE CASE OF SHIRISH MADHUKAR DALVI IS ON THE POINT WHERE THE VALIDITY OF A NOTICE 13 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI WAS TO BE EXAMINED WHEN A SUBSEQUENT NOTICE WAS ISSUED BY THE AO. THE HIGH COURT HAS OBSERVED IN PARA 46 TO 48 AS UNDER: 46. HAVING EXAMINED FACTUAL MATR IX, STATUTORY PROVISION, LAW LAID DOWN BY VARIOUS COURTS PRESENTLY HOLDING THE FIELD, IF ONE TURNS TO THE FACTS OF THE CASE AT HAND, IT IS NOT IN DISPUTE THAT NOTICE DT. 6 TH JULY, 1998 DID NOT MENTION CORRECT PROVISIONS OF THE ACT; IT DID NOT MENTION CORRE CT BLOCK PERIOD FOR WHICH THE RETURN WAS REQUIRED TO BE FILED; IT DID NOT GIVE 1 5 DAYS CLEAR NOTICE. THOUGH THE SAID NOTICE WAS DEFECTIVE, IT DID NOT CAUSE ANY PREJUDICE TO THE APPELLANT. UNDISPUTED FACTUAL MATRIX REVEALS THAT APPELLANT WAS SERVED WITH ANOTHER NOTICE DT. 17 TH SEPT., 1998 MENTIONING BLOCK PERIOD FOR WHICH THE RETURN WAS REQUIRED TO BE FILED INCORPORATING CORRECT REFERENCE TO THE SECTIONS APPLICABLE TO THE CASE IN QUESTION AND IT MENTIONED THAT THE PERIOD OF 45 DAYS FOR FILING RETURN WAS AVAILABLE TO THE APPELLANT WHICH THE RETURN WAS REQUIRED TO BE FILED INCORPORATING CORRECT REFERENCE TO THE SECTIONS APPLICABLE TO THE CASE IN QUESTION AND IT MENTIONED THAT THE PERIOD OF 45 DAYS FOR FILING RETURN WAS AVAILABLE TO THE APPELL ANT WHICH THE APPELLANT DID NOT AVAIL. HE WAS DIRECTED TO FILE RETURN. 47. PURSUANT TO THE ABOVE NOTICE DT. 17 TH SEPT., 1998, THE APPELLANT APPROACHED THE DY. CIT VIDE HIS LETTER DT. 28 TH SEPT., 1998 AND SOUGHT FURTHER EXTENSION OF 45 DAYS FOR FILING BLOCK PERIOD RETURN. HE HAS, ACCORDINGLY, FILED HIS RETURN ON 2 ND NOV., 1998, DECLARING TOTAL INCOME OF RS.1,01,33,700. THE SAME WAS ACCORDINGLY ASSESSED VIDE ASSESSMENT ORDER DT. 30 TH JUNE, 2000. 48. IT IS NOT IN DISPUTE THAT NOTICE DT. 6 TH JULY, 1998 DI D NOT CAUSE ANY PREJUDICE TO THE APPELLANT. DURING THE COURSE OF HEARING, WE SPECIFICALLY ASKED MR. SATHE AS TO WHAT PREJUDICE WAS SUFFERED BY THE APPELLANT ON ACCOUNT OF ALLEGED DEFECTIVE NOTICE DT. 6 TH JULY, 1998. HE MADE A POSITIVE STATEMENT - NO SPECIF IC PREJUDICE WAS SUFFERED BY THE APPELLANT. AT ANY RATE, THE NOTICE DT. 6 TH JULY, 1998 SUFFERED FROM ONLY TECHNICAL 14 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI DEFECTS, IF ANY, AND, IN OUR OPINION, IT WAS PROTECTED UNDER THE UMBRELLA OF S. 292B OF THE ACT' 12. IT IS CLEAR FROM THE FACTS OF THE SAID CASE THAT WHEN THE SUBSEQUENT NOTICE WAS ISSUED THEN THE ALLEGED DEFECTIVE NOTICE DID NOT CAUSE ANY PREJUDICE TO THE ASSESSEE. THEREFORE, THE SAID DECISION IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE WHERE THE ONLY NOTICE ISSUED U/S. 158BC WAS CONT RARY TO THE PROVISIONS OF SEC. 158BC. 13. AS REGARDS THE SPECIAL BENCH DECISION IN CASE OF NAVIN VERMA VS. ACIT 100 ITD 73, THE SAID DECISION HAS BEEN CONSIDERED BY THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF NIRANJAN LAL VERMA (SUPRA) WHEREIN THE COUNSEL FOR THE ASSESSEE GAVE UP THE OBJECTION RAISED BEFORE THE TRIBUNAL REGARDING INVALIDITY OF THE NOTICE ISSUED U/S.158BD. THEREFORE, NO FINDING HAS BEEN GIVEN BY HON'BLE PUNJAB & HARYANA HIGH COURT ON THE ISSUE OF VALIDITY OF NOTICE. 14. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT THE PERIOD OF TIME STIPULATED U/S. 158BC IS NOT LESS THAN 15 DAYS AND, THEREFORE, THE NOTICE ALLOWED THE ASSESSEE TO FILE THE RETURN WITHIN 15 DAYS IS CONTRARY TO THE MANDATORY CONDITION AS PROVIDED U/S.158BC. ACCORDINGLY, THE SAID NOTICE IS INVALID IN VIEW OF THE DECISIONS OF HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON AS WELL AS DECISION OF KARNATAKA HIGH COURT IN THE CASE OF MICRO LABS LTD. CONSEQUENTLY, THE ASSESSMENT FRAMED BY THE AO BAS ED ON THE INVALID NOTICE IS VOID AND LIABLE TO BE SET ASIDE. 10 . WE, THEREFORE, FIND THAT THE LEGAL OBJECTION RAISED BY THE ASSESSEE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE THAT IF THE ASSESSING OFFICER FAILS TO GIVE THE MINIMUM 15 DAYS TIME TO THE ASSESSEE FOR FILING HIS RETURN OF INCOME FOR THE BLOCK PERIOD , T HE ENTIRE ASSESSMENT FRAMED BY THE ASSESSING OFFICER WAS VOID AB INITIO AND BAD IN LAW. WE ALSO HOLD THAT AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA) , THE ASS ESSING OFFICER ASSUME S THE JURISDICTION ONLY AFTER ISSUING THE NOTICE U/S. 158BC(A) OF THE ACT AND HENCE, ISSUANCE OF THE 15 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI NOTICE U/S. 158BC(A) OF THE ACT IS NOT ONLY PROCEDURAL REQUIREMENT BUT IT IS A MANDATORY LEGAL REQUIREMENT AND IF THE ASSESSING OFFICE R FAILS TO COMPLY WITH THE MANDATORY LEGAL REQUIREMENTS THEN THE ENTIRE ASSESSMENT BECOME BAD IN LAW VOID AB INITIO. 1 1 . LET US DEAL WITH THE ARGUMENT OF THE LD. CIT(A) THAT IN THE CASE OF SHIRISH MADHUKAR DALVI (SUPRA) THE HON'BLE JURISDICTIONAL HIGH COU RT HAS HELD THAT THE NOTICE U/S. 158BC(A) ONLY PROVIDES FOR PROCEDURE TO BE ADOPTED FOR BLOCK ASSESSMENT AND IT DOES NOT CONFER ANY JURISDICTION TO ASSESS SEARCH ED PERSON IN FAVOUR OF THE ASSESSING OFFICER. WITH DUE RESPECT IN OUR OPINION THE SAID OBSERVA TION OR FINDING IS NO MORE GOOD LAW IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA) IN WHICH IT IS HELD THAT ISSUING THE NOTICE U/S. 158BC(A) IS A MANDATORY REQUIREMENT AND THE SAID NOTICE IS THE FOUNDATION FOR J URISDICTION OF THE ASSESSING OFFICER TO ASSESS UNDISCLOSED INCOME OF THE SEARCH ED PERSON. MOREOVER, THE ITAT, MUMBAI BENCH HAS ALSO EXPLAINED THE OBSERVATION OF THE HON'BLE JURISDICTION HIGH COURT IN THE CASE OF SHRI RAVENDRA M. PATIL (SUPRA). IN THE LIG HT OF OUR ABOVE DISCUSSION AND REASONING, WE HOLD THAT AS IN THE PRESENT CASE THE NOTICE ISSUED BY THE ASSESSING OFFICER U/S. 158BC(A) OF THE ACT DATED 30 - 11 - 2000 DID NOT GIVE THE MINIMUM TIME OF 15 DAYS TO THE DECEASED ASSESSEE FOR FILING HIS RETURN OF IN COME FOR THE BLOCK PERIOD , T HE SAID NOTICE WAS NOTICE IN COMPLIANCE WITH MANDATORY REQUIREMENT OF SEC. 158BC(A) OF T HE ACT AND THE ASSESSMENT FRAMED IN CONSEQUENCE OF THE LEGALLY VOID NOTICE U/S. 158BC R.W.S. 144 OF THE INCOME - TAX ACT VIDE ORDER DATED 22 - 0 8 - 2002 IS BAD IN LAW AND WE CANCEL THE ASSESSMENT ORDER. ACCORDINGLY, GROUND NO. 1 IS ALLOWED. 1 2 . SO FAR AS GROUND NO. 2 IS CONCERNED THE LD. COUNSEL SUBMITTED THAT AS PER THE INSTRUCTION OF THE ASSESSEE, HE IS NOT PRESSING GROUND NO. 2. AS THE GROUN D NO. 2 IS NOT PRESSED, THE SAME IS DISMISSED AS NOT 16 IT (SS) 578/MUM/2003, LATE SHRI ASHOK ANAND, MUMBAI PRESSED. THE ASSESSE HAS ALSO TAKEN GROUNDS ON MERIT BUT AS THE ASSESSEE HAS SUCCEEDED ON LEGAL GROUNDS, WE DO NOT CONSIDER IT NECESSARY TO ADJUDICATE THOSE GROUNDS AND THOSE GROUNDS ARE KEPT OPEN. 1 3 . IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 20 - 0 2 - 201 5 SD/ - SD/ - ( G . S . PAN NU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED : 20 TH FEBRUARY, 20 15 RK/PS COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - I, NAGPUR 4 THE CIT(CENTRAL), NAGPUR 5 6 THE DR, ITAT, A BENCH, PUNE. GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR , INCOME TAX APPELLATE TRIBUNAL , PUNE