Ita/41/2004 Of M/S Hotel Blue Moon v. Commisioner Of Income Tax

ITA 41/2004BEFORE HON’BLE MR JUSTICE P.G.AGARWALHON’BLE JUSTICE MRS. A HAZARIKA Heard Dr.A.K.Saraf, learned Senior Counsel for the appellant and Mr. U.Bhuyan, learned counsel appearing for the Respondent Revenue. The pressent appeal was admitted to be heard on the following substantial question of law:-\(1)Whether on the facts and in circumstances of the case the issuance of notice u/s 143(3) of the Income Tax Act, 1961 within the prescribed time limit for the purpose of making the asessment under Section 143(3) of the Income Tax Act, 1961 is mandatory ? and (2)Whether, on the facts and in the circumstances of the case and in view of the undisputed findings arrived at by the Commissioner of Income Tax (Appeals), the additions made u/s 68 of the Income Tax Act, 1961 should be deleted or set aside?\ Dr. Saraf has submitted that so far the question No.1 is concerned, it came up for consideration before this Court in ITA No.40/2004 and this Court videorder dated 09.01.2007 held that the provisions of Section 142 and sub-section(2) and (3) of Section 143 will have mandatory application in a case where the Assessing Officer in repudiation of the return filed in response to a notice issued under Section 158BC(a) proceeds to make an inquiry. The defects crept in cannot be cured at this stage in view of the limitation provided in Section 143(2).It may be mentioned here that in the appeal, the question was recasted by the court. Dr. Saraf has further submitted that limitation will apply in case of Block Assessment only and so far individual assessment is concerned there is no dispute in the matter, and it is not the subject matter in this case. In the present case, the qeustion is regarding Block Assessment arising out of certain search and seizure. The question is, therefore, answered in favour of the appellant and against the revenue. It is submitted that in view of the decision in Question No.1, the second question does not arise. We hold accordingly. The appeal is allowed. The impugned orders passed by the authority concerned stands set aside.