DCIT CEN CIR-3, THANE V. CMS HOMES, THANE

ITSSA 6/MUM/2009

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7425 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 15-02-2012
• Assessment Year: misc
• Appeal Filed On: 20-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M SUBRAMANIAM
• Assessee Lawyers: J Y WAGH
• Keywords: Search and seizure; Document seized; Procedural lapse; Block assessment; Documents seized
• Section: 143(3); 145; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER IT(SS)A NO.6/MUM/2009 BLOCK PERIOD 01.04.1996 TO 25.03.2003 DCIT CENTRAL CIRCLE-3, OFFICE OF THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -3, THANE PAWAR INDL. ESTATE, EDULJI ROAD, CHARAI THANE -400 601 ...... APPELLANT VS M/S. CMS HOMES, MEZANNINE FLOOR, KONARK TOWER, OPP. SAIBABA TEMPLE, GHANTALI ROAD, THANE (WEST), MUMBAI ..... RESPONDENT PAN: AADFC 8782 G APPELLANT BY: SHRI J.Y. WAGH RESPONDENT-REVENUE BY: SHRI M. SUBRAMANIAM DATE OF HEARING: 16.02.2012 DATE OF PRONOUNCEMENT: 25.04.2012 O R D E R PER R.S. PADVEKAR, JM : IN THIS APPEAL THE REVENUE HAS CHALLENGED THE IMPUG NED ORDER OF THE LD. CIT (A)-1, THANE DATED 22.10.2008 AND THIS APPEAL IS ARISING OUT OF THE BLOCK ASSESSMENT FRAMED BY THE A.O. U/S. 158C R.W.S. 143(3) OF THE ACT. THE REVENUE HAS TAKEN THE FOLLO WING GROUNDS IN THE APPEAL: 1. THE LEARNED CIT (A) HAS ERRED IN DELETING THE ADDITION OF RS.12,33,000/- ON ACCOUNT OF ON-MONEY RECEIVED IN S ALE OF FLATS WHICH WAS NOT REFLECTED IN BOOKS OF ACCOUNTS. 2. THE LEARNED CIT (A) WANTED SUMMONING OF PERSON WHO ACCORDING TO CIT (A) SHOULD HAVE BEEN EXAMINED BY T HE A.O., HE SHOULD HAVE CALLED FOR THE REMAND REPORT OR CARRY O UT ENQUIRIES ITSS A NO.6/MUM/2009 M/S. CMS HOMES 2 HIMSELF AS HE HAS THE POWER AS TO-TERMINUS OF THAT A.O. THIS COULD NOT BE MADE THE BASIS OF DELETING THE ADDITIONS. 3. THAT IF THE LD. CIT (A) WANTED SUMMONING OF PER SON WHO ACCORDING TO CIT (A) SHOULD HAVE BEEN EXAMINED BY T HE A.O. HE SHOULD HAVE CALLED FOR THE REMAND REPORT OR CARRY O UT ENQUIRIES HIMSELF AS HE HAS THE POWER AS CO-TERMINUS OF THAT A.O. THIS COULD NOT BE MADE THE BASIS OF DELETING THE ADDITIONS. 4. THE LD. CIT (A) HAS ERRED IN ALLOWING RELIEF TO ASSESSEE FIRM MERELY ON THE GROUND THAT A.O. HAS NOT SUMMONED THE PURCHASER OR ALLEGED PURCHASER. 5. THE LEARNED CIT (A) FAILED TO APPRECIATE THE FA CT THAT THOUGH THE SALE DEED IS ENTERED WITH OTHER PERSON THAN SAM E MENTIONED IN SEIZED DOCUMENTS FROM WHOM CASH IS RECEIVED DOES NOT MEAN THAT CASH IS NOT RECEIVED BY ASSESSEE FIRM, REFLECT ED IN SEIZED DOCUMENTS. 6. THE LEARNED CIT (A) FAILED TO APPRECIATE THE FAC T THAT GETTING THE FLAT REGISTERED ON THE NAME OF ANY OTHER PERSON THAN THE PERSON WHOSE NAME IS MENTIONED IN THE SEIZED DOCUME NTS AS HAVING GIVEN CASH IS ONLY ON PRAY OF THE ASSESSEE. 7. THE ORDER OF THE LD. CIT (A) IS PERVERSE AS IT HAS BEEN PASSED IGNORING THE FACTS ON RECORD. 2. THE ASSESSEE HAS FILED AN APPLICATION UNDER RULE 27 OF THE ITAT RULES, 1962: 1. THE 158BD PROCEEDINGS HAVE BEEN INITIATED AFTER A LAPSE OF TWO YEARS FROM THE DATE OF SEARCH ACTION. 2. THE SATISFACTION THAT IS REQUIRED TO BE RECORDE D BEFORE INITIATING THE 158BD PROCEEDINGS APPEARS TO HAVE NO T BEEN DONE. ITSS A NO.6/MUM/2009 M/S. CMS HOMES 3 3. THE 143(2) HEARING NOTICE REQUIRED TO BE ISSUED HAS BEEN ISSUED AFTER THE EXPIRY OF MANDATORY PERIOD PROVIDE D BY THE PROVISIONS. 3. WE HAVE HEARD THE PARTIES ON THE APPLICATION OF RULE 27 OF THE ACT. AS PER THE GROUNDS TAKEN UNDER RULE 27 OF THE ITAT RULES, 1962, THE ASSESSEE HAS QUESTIONED THE LEGALITY AND VALIDI TY OF THE ASSESSMENT PROCEEDINGS ITSELF. HENCE, WE HAVE DECIDED TO DISPO SE OFF THE APPLICATION FILED BY THE ASSESSEE UNDER RULE 27 OF THE ITAT RULES. THE LD. COUNSEL SUBMITS THAT AT THE FIRST INSTANCE HE I S PRESSING GROUND NO.3 AND THAT MAY BE ADJUDICATED. GROUND NO.3 RAIS ED BY THE ASSESSEE IS THAT THE A.O. DID NOT SERVE THE NOTICE U/S.143(2) WITHIN A TIME LIMIT PERMISSIBLE AS PER THE PROVISO TO THE SA ID SECTION. 4. THE FACTS PERTAINING TO THE CASE AS PER THE RECO RD ARE AS UNDER. THE ASSESSEE FIRM IS ENGAGED IN THE BUSINESS OF CIV IL CONSTRUCTION. THERE WAS SEARCH AND SEIZURE ACTION U/S.132 OF THE ACT IN THE CASE OF M/S. SMC INFRASTRUCTURE P. LTD. ON 26.03.2003 AND C ERTAIN INCRIMINATING DOCUMENTS PERTAINING TO THE ASSESSEE WERE SEIZED. THE ASSESSEE WAS SERVED WITH THE NOTICE U/S.158BD DATED 29.04.2005 AND IN RESPONSE TO THE SAID NOTICE THE ASSESSEE FURNISH ED ITS RETURN FOR THE BLOCK PERIOD ON 24.07.2005, DECLARING UNDISCLOSED INCOME AT RS. NIL. ON EXAMINATION OF THE SEIZED PAPERS, IT WAS FOUND T HAT THE ASSESSEE WAS PARTLY ACCEPTING THE BOOKING AMOUNT OF THE FLAT IN CASH AND PARTLY IN CHEQUE. FINALLY, THE ASSESSMENT OF THE ASSESSEE WAS COMPLETED BY DETERMINING THE TOTAL UNDISCLOSED INCOME OF RS.12,3 3,000/-. 5. THE LD. COUNSEL RELIED ON THE DECISION IN THE CASE OF B.V. BAMASI VS. CIT 83 ITR 223 (BOM). HE SUBMITS THAT E VEN THOUGH THE ASSESSEE HAS NOT FILED ANY CROSS OBJECTION OR APPEA L AGAINST THE ORDER OF THE FIRST APPELLATE AUTHORITY BUT CAN SUPPORT TH E ORDER OF THE APPELLATE AUTHORITY BY TAKING THE GROUND AND THAT I S NOT PROHIBITED. THE LD. COUNSEL ALSO RELIED ON THE ASSAM CO. INDIA LTD. VS. CIT 256 ITR 483 (GAU.H .C.) TO SUPPORT HIS ARGUMENT THAT EV EN THOUGH THE ASSESSEE HAS NOT FILED OBJECTION OR APPEAL THE TRIB UNAL CAN ENTERTAIN ITSS A NO.6/MUM/2009 M/S. CMS HOMES 4 ANY GROUND URGED BY THE RESPONDENT ASSESSEE PROVIDE D THAT RELEVANT FACTS ON RECORD. THE LD. COUNSEL ARGUED THAT THE EN TIRE ASSESSMENT PROCEEDINGS IS VITIATED AS THE A.O. DID NOT SERVE T HE MANDATORY NOTICE U/S.143(2) WITHIN THE PERIOD OF THE ONE YEAR FROM T HE END OF THE MONTH IN WHICH THE ASSESSEE FILED HIS RETURN OF INCOME IN RESPONSE TO NOTICE U/S.158BD. THE LD. COUNSEL RELIED ON THE DECISION IN THE CASE OF ACIT VS. HOTEL BLUE MOON 321 ITR 362. WE HAVE ALS O HEARD THE LD. D.R. 6. IN THE CASE OF B.K. BAMASI (SUPRA) THE HONBLE JURISDICTIONAL HIGH COURT CONSIDERED THE RIGHT OF THE RESPONDENT T O RAISE NEW GROUND AND ALSO THE CONSEQUENCES IF THE GROUND OF THE RESP ONDENT IS ALLOWED AND HELD AS UNDER: 38. NOW THERE IS NO DOUBT THAT, AS THE ASSESSEE HA D ALREADY FILED A VOLUNTARY RETURN, THE NOTICE UNDER S. 34(1) (A) WAS WRONGLY ISSUED AND THE PROCEEDINGS OF ASSESSMENT WHICH TOOK PLACE IN PURSUANCE OF THAT NOTICE ARE INVALID. THIS IS THE R ATIO LAID DOWN BY THE SUPREME COURT IN ITS SAID JUDGMENT IN THE CASE OF CIT VS. RANCHHODDAS KARSONDAS (SUPRA) MR. JOSHI HAS NOT DIS PUTED THIS POSITION. THE ONLY QUESTION IS WHETHER THE TRIBUNAL WAS ENTITLED IN LAW TO REFUSE TO ALLOW THE ASSESSEE TO URGE THAT GROUND IN THE APPEAL BEFORE IT. NOW A DIVISION BENCH OF THIS HIGH COURT IN CIT VS. HAZARIMAL NAGI & CO. (1962) 46 ITR 1168 (BORN), AFTER CONSIDERING THE RELEVANT SECTIONS OF THE IT ACT AND THE RELEVANT RULES MADE THEREUNDER, HELD THAT THE POWERS OF THE TRIBUNAL ARE SIMILAR TO THE POWERS OF AN APPELLATE COURT UNDER T HE CIVIL PROCEDURE CODE. IT HAS FURTHER HELD THAT THE RESPON DENT IN AN APPEAL IS UNDOUBTEDLY ENTITLED TO SUPPORT THE DECRE E WHICH IS IN HIS FAVOUR ON ANY GROUNDS WHICH ARE AVAILABLE TO HI M, EVEN THOUGH THE DECISION OF THE LOWER COURT IN HIS FAVOU R MAY NOT HAVE BEEN BASED ON THOSE GROUNDS. IT HAS FURTHER HELD TH AT IF THE APPELLANT IN HIS CHALLENGE TO THE DECREE OF THE LOW ER COURT IS ENTITLED TO TAKE A NEW GROUND NOT AGITATED IN THE C OURT BELOW BY LEAVE OF THE COURT, THERE APPEARS TO BE NO REASON W HY A ITSS A NO.6/MUM/2009 M/S. CMS HOMES 5 RESPONDENT IN SUPPORT OF THE DECREE IN HIS FAVOUR P ASSED BY THE LOWER COURT SHOULD NOT BE ENTITLED TO AGITATE A NEW GROUND AND SUBJECT TO THE SAME LIMITATION. A DIVISION BENCH OF THE ALLAHABAD HIGH COURT HAS TAKEN A SIMILAR VIEW IN KANPUR INDUS TRIAL WORKS VS. CIT (1966) 59 ITR 407 (ALL). THAT JUDGMENT HAS CONSIDERED THE POSITION OF AN APPEAL UNDER S. 33 OF THE IT ACT ALO NG WITH THE RELEVANT RULES AND THAT OF AN APPEAL UNDER THE CPC AND THE PROVISIONS OF 0. XLI, R. 22. THE JUDGMENT HOLDS THA T WHEN THE DEPARTMENT FILES AN APPEAL FOR AN INCREASE IN THE A SSESSED INCOME, THE SUBJECT-MATTER OF THE APPEAL IS THE INC REASE CLAIMED BY THE DEPARTMENT AND THE ASSESSEE CAN URGE ANY GRO UND OF DEFENCE EVEN THOUGH IT MIGHT HAVE BEEN REJECTED BY THE AAC FOR SHOWING THAT THERE SHOULD BE NO INCREASE. IT HAS FU RTHER HELD THAT THAT THE ASSESSEE IS NOT LIABLE TO BE ASSESSED AT A LL IS A GROUND FOR SHOWING THAT THERE SHOULD BE NO FURTHER ASSESSM ENT AND THE DEPARTMENTS APPEAL CAN THEREFORE BE RESISTED ON TH AT GROUND AND THAT THERE IS NO INCONGRUITY IN MAINTAINING THE ASSESSMENT ORDER PASSED AGAINST THE ASSESSEE AND ET REFUSING T O INCREASE IT ON THE GROUND THAT HE WAS NOT LIABLE TO BE ASSESSED AT ALL. THE JUDGMENT POINTS OUT HOWEVER THAT IF THE TRIBUNAL AC CEPTS THE GROUND OF DEFENCE THAT THE ASSESSEE WAS NOT LIABLE TO BE ASSESSED, IT CAN ONLY REFUSE TO INCREASE THE ASSESS ED INCOME AS ONLY SUCH AN ORDER WOULD BE WITHIN THE SCOPE OF THE APPEAL FILED BY THE DEPARTMENT AND ANOTHER ORDER SUCH AS ANNULLI NG THE ASSESSMENT WOULD BE OUTSIDE THE SCOPE OF THE APPEAL . THAT JUDGMENT HOLDS THAT THE POSITION OF AN APPEAL UNDER S. 33 OF THE IT ACT AND AN APPEAL UNDER THE CPC IS IDENTICAL. A FULL BENCH OF THE MADRAS HIGH COURT HAS IN VENKATA RAO VS. SATYANARAYANAMURTHY ILR 1944 MAD 147 : AIR 1943 MAD 698 (FB) HELD THAT IT WAS OPEN TO A RESPONDENT IN APPEA L WHO HAD NOT FILED CROSS-OBJECTION WITH REGARD TO THE PORTION OF THE DECREE WHICH HAD GONE AGAINST HIM TO URGE IN OPPOSITION TO THE A PPEAL OF THE PLAINTIFF A CONTENTION WHICH IF ACCEPTED BY THE TRI AL COURT WOULD HAVE NECESSITATED THE TOTAL DISMISSAL OF THE SUIT, BUT THE DECREE IN SO FAR AS IT WAS AGAINST HIM WOULD STAND. THE JUDGM ENT OF THE ITSS A NO.6/MUM/2009 M/S. CMS HOMES 6 TRIBUNAL IN OUR CASE CLEARLY SHOWS THAT, ALTHOUGH T HE ASSESSEE WANTED TO RAISE A NEW POINT AS A GROUND OF DEFENCE IN THE APPEAL, HE SPECIFICALLY STATED THAT HE WANTED TO RELY UPON IT ONLY FOR THE PURPOSE OF HAVING THE APPEAL BY THE DEPARTMENT FOR ENHANCEMENT IN INCOME-TAX DISMISSED. BUT EVEN IF THE ASSESSEE H AD NOT MADE SUCH A STATEMENT, THE ABOVE JUDGMENT SHOWS THAT THE ASSESSEE WOULD BE ENTITLED TO RAISE A NEW GROUND, PROVIDED I T IS A GROUND OF LAW AND DOES NOT NECESSITATE ANY OTHER EVIDENCE TO BE RECORDED THE NATURE OF WHICH WOULD NOT ONLY BE A DE FENCE TO THE APPEAL ITSELF, BUT MAY ALSO AFFECT THE VALIDITY OF THE ENTIRE ASSESSMENT PROCEEDINGS. IF THE GROUND SUCCEEDS, THE ONLY RESULT WOULD BE THAT THE APPEAL WOULD FAIL. THE ACCEPTANCE OF THE GROUND WOULD SHOW THAT THE ENTIRE ASSESSMENT PROCEE DINGS WERE INVALID, BUT YET THE TRIBUNAL WHICH HEARS THAT APPE AL WOULD HAVE NO POWER TO DISTURB OR TO SET ASIDE THE ORDER IN FA VOUR OF THE APPELLANT AGAINST WHICH THE APPEAL HAS BEEN FILED. THE GROUND WOULD SERVE ONLY AS A WEAPON OF DEFENCE AGAINST THE APPEAL. IF THE RESPONDENT HAS NOT HIMSELF TAKEN ANY PROCEEDING S TO CHALLENGE THE ORDER IN APPEAL, THE TRIBUNAL CANNOT SET ASIDE THE ORDER APPEALED AGAINST. THAT ORDER WOULD STAND AND WOULD HAVE FULL EFFECT IN SO FAR AS IT IS AGAINST THE RESPONDE NT. THE TRIBUNAL REFUSED TO ALLOW THE ASSESSEE TO TAKE UP THIS GROUN D UNDER AN INCORRECT IMPRESSION OF LAW THAT IF THE POINT WAS A LLOWED TO BE URGED AND SUCCEEDED, THE TRIBUNAL WOULD HAVE NOT ON LY TO DISMISS THE APPEAL, BUT ALSO TO SET ASIDE THE ENTIR E ASSESSMENT. THE POINT WOULD HAVE SERVED AS A WEAPON OF DEFENCE AGAINST THE APPEAL, BUT IT COULD NOT BE MADE INTO A WEAPON OF A TTACK AGAINST THE ORDER IN SO FAR AS IT WAS AGAINST THE ASSESSEE. WE, THEREFORE, FOLLOWING THE RATIO IN THE CASE OF B.A. BAMASI (SUPRA) ALLOW THE GROUND RAISED BY THE ASSESSEE ON THE LEGALITY AND VALIDITY OF THE ASSESSMENT PROCEEDINGS UNDER RULE 2 7 OF THE I.T.A.T. RULES 1962. ITSS A NO.6/MUM/2009 M/S. CMS HOMES 7 7. IN THE CASE OF HOTEL BLUE MOON (SUPRA) THE HONB LE SUPREME COURT HAS EXAMINED THE SAME ISSUE, MORE PARTICULARL Y, THE REQUIREMENT OF SERVICE OF THE NOTICE U/S.143(2) EVE N IN THE CASE OF SEARCH CASES AND HELD AS UNDER: 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 PROCEED TO DETER MINE THE UNDISCLOSED INCOME OF THE BLOCK PERIOD IN THE MANNE R LAID DOWN IN S. 158BB AND THE PROVISIONS OF S. 142, SUB- SS. (2) AND (3) OF S. 143, S. 144 AND S. 145 SHALL, SO FAR AS MAY BE, APPLY. AN ANALYSIS OF THIS SUB-SECTION INDICATES T HAT, AFTER THE RETURN IS FILED, THIS CLAUSE ENABLES THE AC TO COMPLETE THE ASSESSMENT BY FOLLOWING THE PROCEDURE LIKE ISSU E OF NOTICE UNDER S. 143(2)/142 AND COMPLETE THE ASSESSM ENT UNDER S. 143 (3). THIS SECTION DOES NOT PROVIDE FOR ACCEPTING THE RETURN AS PROVIDED UNDER S. 143(1)(A). THE AC H AS TO COMPLETE THE ASSESSMENT UNDER S. 143(3) ONLY. IN CA SE OF DEFAULT IN NOT FILING THE RETURN OR NOT COMPLYING W ITH THE NOTICE UNDER S. 143(2)1142, THE AC IS AUTHORIZED TO COMPLETE THE ASSESSMENT EX PARTE UNDER S. 144. CLAU SE (B) OF S. 158BC BY REFERRING TO SS. 143(2) AND 143(3) W OULD APPEAR TO IMPLY THAT THE PROVISIONS OF S. 143(1) AR E EXCLUDED. BUT S. 143(2) ITSELF BECOMES NECESSARY ON LY WHERE IT BECOMES NECESSARY TO CHECK THE RETURN, SO THAT WHERE BLOCK RETURN CONFORMS TO THE UNDISCLOSED INCO ME INFERRED BY THE AUTHORITIES, THERE IS NO REASON, WH Y THE AUTHORITIES SHOULD ISSUE NOTICE UNDER S. 143(2). HO WEVER, IF AN ASSESSMENT IS TO BE COMPLETED UNDER S. 143(3) R/ W S. 158BC, NOTICE UNDER S. 143(2) SHOULD BE ISSUED WITH IN ONE YEAR FROM THE DATE OF FILING OF BLOCK RETURN. OMISS ION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UND ER S. 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE AND, THEREFORE, THE REQUIREMENT OF NOTI CE UNDER ITSS A NO.6/MUM/2009 M/S. CMS HOMES 8 S. 143(2) CANNOT BE DISPENSED WITH. THE OTHER IMPOR TANT FEATURE THAT REQUIRES TO BE NOTICED IS THAT THE S. 158BC(B) SPECIFICALLY REFERS TO SOME OF THE PROVISIONS OF TH E ACT WHICH REQUIRES TO BE FOLLOWED BY THE AC WHILE COMPLETING THE BLOCK ASSESSMENTS UNDER CHAPTER XIV-B OF THE ACT. T HIS LEGISLATION IS BY INCORPORATION. THIS SECTION EVEN SPEAKS OF SUB-SECTIONS WHICH ARE TO BE FOLLOWED BY THE AO. HA D THE INTENTION OF THE LEGISLATURE WAS TO EXCLUDE THE PRO VISIONS OF CHAPTER XIV OF THE ACT, THE LEGISLATURE WOULD HAVE OR COULD HAVE INDICATED THAT ALSO. A READING OF THE PROVISIO N WOULD CLEARLY INDICATE, IN OUR OPINION, IF THE AC, IF FOR ANY REASON, REPUDIATES THE RETURN FILED BY THE ASSESSEE IN RESP ONSE TO NOTICE UNDER S. 158BC(A), THE AO MUST NECESSARILY I SSUE NOTICE UNDER S. 143(2) OF THE ACT WITHIN THE TIME P RESCRIBED IN THE PROVISO TO S. 143(2) OF THE ACT. WHERE THE L EGISLATURE INTENDED TO EXCLUDE CERTAIN PROVISIONS FROM THE AMB IT OF S. 158BC(B) IT HAS DONE SO SPECIFICALLY. THUS, WHEN S. 158BC(B) SPECIFICALLY REFERS TO [SIC-S. 143(2)] APP LICABILITY OF THE PROVISO THERETO CANNOT BE EXCLUDED. WE MAY ALSO NOTICE HERE ITSELF THAT THE CLARIFICATION GIVEN BY CBDT IN ITS CIRCULAR NO. 717, DT. 14TH AUG., 1995, HAS A BINDIN G EFFECT ON THE DEPARTMENT, BUT NOT ON THE COURT. THIS CIRCU LAR CLARIFIES THE REQUIREMENT OF LAW IN RESPECT OF SERV ICE OF NOTICE UNDER SUB-S. (2) OF S. 143 OF THE ACT. ACCOR DINGLY, WE CONCLUDE EVEN FOR THE PURPOSE OF CHAPTER XIV-B OF T HE ACT, FOR THE DETERMINATION OF UNDISCLOSED INCOME FOR A B LOCK PERIOD UNDER THE PROVISIONS OF S. 158BC, THE PROVIS IONS OF S. 142 AND SUB-SS. (2) AND (3) OF S. 143 ARE APPLICABL E AND NO ASSESSMENT COULD BE MADE WITHOUT ISSUING NOTICE UND ER S. 143(2) OF THE ACT. HOWEVER, IT IS CONTENDED BY SRI SHEKHAR, LEARNED COUNSEL FOR THE DEPARTMENT THAT IN VIEW OF THE EXPRESSION SO FAR AS MAY BE IN S. 153BC(B), THE I SSUE OF NOTICE IS NOT MANDATORY BUT OPTIONAL AND ARE TO BE APPLIED TO THE EXTENT PRACTICABLE. IN SUPPORT OF THAT CONTE NTION, THE LEARNED COUNSEL HAS RELIED ON THE OBSERVATION MADE BY THIS ITSS A NO.6/MUM/2009 M/S. CMS HOMES 9 COURT IN DR. PARTAP SINGHS CASE (SUPRA). IN THIS C ASE, THE COURT HAS OBSERVED THAT S. 37(2) PROVIDES THAT THE PROVISIONS OF THE CODE RELATING TO SEARCHES, SHALL SO FAR AS MAY BE, APPLY TO SEARCHES DIRECTED UNDER S. 37(2). READING THE TWO SECTIONS TOGETHER IT MERELY MEANS THAT THE METHODOLOGY PRESCRIBED FOR CARRYING OUT THE SEARCH PROVIDED IN S. 165 HAS TO BE GENERALLY FOLLOWED. TH E EXPRESSION SO FAR AS MAY BE HAS ALWAYS BEEN CONST RUED TO MEAN THAT THOSE PROVISIONS MAY BE GENERALLY FOLL OWED TO THE EXTENT POSSIBLE. THE LEARNED COUNSEL FOR THE RE SPONDENT HAS BROUGHT TO OUR NOTICE THE OBSERVATIONS MADE BY THIS COURT IN THE CASE OF MAGANLAL VS. JAISWAL INDUSTRIE S & ORS. (1989) 4 SCC 344, WHEREIN THIS COURT WHILE DEALING WITH THE SCOPE AND IMPORT OF THE EXPRESSION AS FAR AS PRACTICABLE HAS STATED WITHOUT ANYTHING MORE THE EXPRESSION AS FAR AS POSSIBLE WILL MEAN THAT THE MANNER PROVIDED IN THE CODE FOR ATTACHMENT OR SALE OF PROP ERTY IN EXECUTION OF A DECREE SHALL BE APPLICABLE IN ITS EN TIRETY EXCEPT SUCH PROVISION THEREIN WHICH MAY NOT BE PRAC TICABLE TO BE APPLIED. 16. THE CASE OF THE REVENUE IS THAT THE EXPRESSION SO FAR AS MAY BE APPLY INDICATES THAT IT IS NOT EXPECTED TO FOLLOW THE PROVISIONS OF S 142, SUB-SS. (2) AND (3) OF S. 143 STRICTLY FOR THE PURPOSE OF BLOCK ASSESSMENTS. WE DO NOT AGR EE WITH THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE REVE NUE, SINCE WE DO NOT SEE ANY REASON TO RESTRICT THE SCOP E AND MEANING OF THE EXPRESSION SO FAR AS MAY BE APPLY. IN OUR VIEW, WHERE THE AO IN REPUDIATION OF THE RETURN FIL ED 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. SEC. 158BH PROVIDES FOR APPLICATION OF THE OTH ER PROVISIONS OF THE ACT. IT READS: SAVE AS OTHERWISE PROVIDED ITSS A NO.6/MUM/2009 M/S. CMS HOMES 10 IN THIS CHAPTER, ALL THE OTHER PROVISIONS OF THIS A CT SHALL APPLY TO ASSESSMENT MADE UNDER THIS CHAPTER. THIS IS AN ENABLING PROVISION, WHICH MAKES ALL THE PROVISIONS OF THE ACT, SAVE AS OTHERWISE PROVIDED, APPLICABLE FOR PRO CEEDINGS FOR BLOCK ASSESSMENT. THE PROVISIONS WHICH ARE SPEC IFICALLY INCLUDED ARE THOSE WHICH ARE AVAILABLE IN CHAPTER X IV-B OF THE ACT, WHICH INCLUDES S. 142 AND SUB-SS. (2) AND (3) OF S. 143. 8. WE FIND THAT THE A.O. HAS IN CLEAR TERMS NOTED I N THE ASSESSMENT ORDER THAT THE ASSESSEE FILED THE RETURN OF INCOME IN RESPONSE TO THE NOTICE U/S.158BD ON 24.07.2005. AS PER THE LAW APPLICABLE FOR THE BLOCK ENDING ON 26.03.2003 THE A O WAS BOUND TO SERVE THE NOTICE U/S.143(2) ON OR BEFORE 31.07.2006 . THE AO ISSUED THE NOTICE UNDER SEC. 143(2) OF THE ACT DATED 30.03 .2007 WHICH IS ADMITTEDLY NOT WITHIN THE TIME LIMIT FIXED BY THE P ROVISO TO SEC.143(2) OF THE ACT. WE HAVE TO ANSWER THIS ISSUE IN FAVOUR OF THE ASSESSEE AS IT IS SQUARELY COVERED BY THE DECISION OF HOTEL BLUE M OON (SUPRA). WE, ACCORDINGLY, SUSTAIN THE ORDER OF THE LD. CIT (A) A ND DISMISS THE APPEAL FILED BY THE REVENUE. 9. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 5TH APRIL, 2012. SD/- ( J. SUDHAKAR REDDY ) ACCOUTANT MEMBER SD/- ( R.S. PADVEKAR ) JUDICIAL MEMBER MUMBAI, DATE: 25TH APRIL, 2012 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-I, THANE. 4) THE CIT (CENTRAL), PUNE. 5) THE D.R. C BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN