Kerala H.C : Whether when notice issued was accepted by assessee and return was filed in terms of notice, assessee could contend that there was no service of notice in terms of section 282

High Court Of Kerala

CIT vs. Lekshmi Traders

Block Period : 1-4-1988 To 23-2-1999

Section : 158BD, 282

C.N. Ramachandran Nair And Bhabani Prasad Ray, JJ.

IT Appeal Nos. 146 And 1510 Of 2009

November  12, 2010 

JUDGMENT

C.N. Ramachandran Nair, J. – The question raised in these connected appeals filed by the revenue is whether the Tribunal was justified in cancelling the assessment made on the respondent assessee under section 158BC read with section 158BD for the block period commencing from 1-4-1988 to 23-2-1999 for the reason that notice of assessment issued was defective or invalid.

2. We have heard Shri P.K.R. Menon, learned senior counsel appearing for the revenue and Shri P. Balakrishnan learned counsel appearing for the respondent assessee.

3. The facts leading to the controversy are as follows :—

The respondent assessee, a partnership firm, was engaged in liquor business. However, since abkari licence, with which the business was carried on by the firm, was issued in the name of one of the partners, the firm was assessed as an AOP by virtue of two Full Bench decisions of this Court. Consequently, block assessment made after search was on the respondent assessee. Against assessment as an Association of Persons (AOP), there is no dispute on the status assigned to the assessee by the Assessing Officer. However, the assessment was made under section 158BC read with section 158BD based on the evidence gathered during the search conducted in the premises of one Mr. Prasad, a partner of the firm, in other words a member of the AOP. The search in the premises of Mr. Prasad yielded materials about the income of the respondent assessee, which is an AOP, in which the searched person is a member. Therefore, Annexure D notice produced in ITA No. 146/2009 was issued to the respondent assessee under section 158BD of the Income-ax Act. Pursuant to the notice, the assessee filed return declaring an undisclosed income of Rs. 5,30,000. After verifying the return and evidence, the Assessing Officer issued pre-assessment notice under section 158BC read with section 158BD and completed the assessment in the name of the respondent assessee under the above provisions. The total income assessed was above Rs. 13 crores. The assessee filed appeal before the CIT (Appeals) without challenging the validity of the assessment but by contesting the assessment on merits. The CIT (Appeals) granted a quantum relief by reducing the income assessed by over Rs. 2 crores. The assessee as well as the Department filed separate appeals against the order of the CIT (Appeals). In the ground of appeal filed before the Tribunal also, the assessee did not have a case that the assessment is invalid on account of issue of notice allegedly under a wrong section. However the assessee raised an additional ground in the appeal before the Tribunal contending that Annexure D notice is invalid, and so much so assessment made based on the same is also invalid. The Tribunal, by mainly relying on the Division Bench judgment of this Court in P.N. Sasikumar v. CIT[1988] 170 ITR 80/[1987] 35 Taxman 131 , cancelled the assessment for the reason that Annexure D notice was issued under section 158BD and not under section 158C read with section 158BD, and against this order of the Tribunal, separate appeals were filed by the revenue raising the question as to whether the Tribunal is right in holding that Annexure D notice is invalid and consequently the assessment also is invalid.

4. Admittedly search was made in the premises of one Mr. Prakash, who is one of the partners and one of the members of the respondent AOP. Materials and evidence collected during the search, proved receipt of income by the respondent AOP from the abkari business carried on by them during the block period. Consequently Annexure D notice was issued to the respondent assessee under section 158BD of the Income-tax Act. Since validity of this notice is the crux of the issue in these appeals, we have thoroughly examined the contents of the said notice. What is seen in Annexure D notice is that it is a notice printed requiring the assessee to file return in form 2B for the purpose of block assessment under section 158BC of the Act. In fact, while issuing the printed notice, the Officer has corrected section 158BC to section 158BD both in the heading and in the operative portion, but the return called for is in Form 2B, which is the return for block period for assessment under section 158BC.

5. The question to be considered is whether the notice sent under section 158BD is invalid for the reason that the Assessing Officer has not separately mentioned in the said notice that it is issued under section 158BC also. The Tribunal’s finding is that if the notice was issued “under section 158BD read with section 158BC”, the assessment would have been valid. In this context, we have to examine the effect of the notice sent by the Assessing Officer by correcting in the printed form section 158BC to section 158BD. For this purpose we have to examine the scope of block assessment under sections 158BC and 158BD. Section 158BD authorises the Department to assess a person other than the searched person based on materials recovered during search. In this case search was made in the premises of one Mr. Prasad, who is one of the partners and one of the members of the respondent AOP. When evidence was recovered about the undisclosed income earned by the respondent assessee during the course of search in the premises of one of the members of the AOP, assessment has to be made on respondent under section 158BD read with section 158BC. The assessee also does not dispute this position. But the only question raised is whether the notice issued by the Department based on which the block assessment was completed is valid or not. What we find from section 158BD is that no independent notice is contemplated under the said section because it only gives jurisdiction to the Assessing Officer to assess a person other than the searched person based on materials gathered during search. What is stated in section 158BD is that when any evidence is collected about income earned by a person other than the person searched under section 132, the Officer who conducted the search shall hand over those materials and evidence to the Assessing Officer having jurisdiction over such other person to be proceeded for assessment, and once the materials are handed over, the Assessing Officer having jurisdiction over the person to be assessed should issue notice and make assessment under section 158BC. In other words, the procedure for assessment of a person other than the searched person under section 158BD is the same procedure contained in section 158BC. Since no notice is prescribed under section 158BD, what is required is to issue an intimation about the initiation of proceedings under section 158BD by the Officer, and then to call for return in form 2B prescribed under Rule 12(1)(a) for assessment under section 158BC of the Act. In this case, Annexure D notice clearly shows that the jurisdiction the Assessing Officer for initiation of proceedings for assessment is by virtue of powers under section 158BD, and the return called under the said notice is the return in Form 2B, which is the return required to be filed by the assessee for assessment under section 158BC. While the learned counsel for the assessee specifically referred to section 282(2)(c) and contended that there is failure in serving notice as mentioned above, learned senior counsel for the revenue relied on section 292B and contended that non-mentioning of section 158BC along with section 158BD in Annexure D notice will not invalidate the notice based on which the assessment was completed. Sections 282(2)(c) and 292B are extracted hereunder :—

“282. Service of notice generally.—(1) A notice or requisition under this Act may be served on the person therein named either by post or as if it were a summons issued by a court under the Code of Civil Procedure, 1908 (5 of 1908).

(2) Any such notice or requisition may be addressed :—
** ** **

(c)in the case of any other association or body of individuals, to the principal officer or any member thereof;”

“292B. No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.”

6. What is clear from the above provisions is that notice should be issued in the name of the assessee proposed to be assessed and in the case of an AOP, to the Principal Officer or any member thereof and serve notice on such person to represent the AOP. In this case, admittedly, notice was received by the respondent assessee, and one of the members of the AOP filed return pursuant to the notice, in form 2B on behalf of the AOP. In other words, when the assessee admits receipt of notice and files it’s proper return in the prescribed form in terms of the notice, we do not think that the assessee is entitled to contend that the notice is not served in accordance with the procedure prescribed under the above sections. In our view, proof of the detailed procedure adopted for service of notice under sub-section (2) of section 282 is required to be enquired into only when the assessee complains non-receipt of notice. In other words, when notice issued is accepted by the assessee and return is filed in terms of the notice, the assessee cannot contend that there is no service of notice in terms of the section. Besides the above, what we find is that Annexure D notice is a notice prescribed under Rule 12(1)(a) of the Rules and in the said notice what is called for is return in the prescribed format i.e., in Form 2B, which is for making block assessment under section 158BC. So much so, even though the Assessing Officer has corrected section “158BC” to section “158BD”, the contents of the notice satisfy the requirement of a notice under section 158BC as well. Therefore, in our view, the notice served on the assessee has to be necessarily taken as a notice issued under section 158BC read with section 158BD, and not an independent notice under section 158BD as held by the Tribunal. As already found by us the assessee rightly understood the notice as one issued under section 158BD read with section 158BC and in fact the assessee correctly responded by filing return in Form 2B. The Tribunal misdirected themselves to reach the wrong conclusion, because they have not cared to go through the contents of the notice and to find out under what provision the notice is issued. So much so, we hold that the finding of the Tribunal that the notice is one issued under section 158BD alone is incorrect and unsustainable. On facts it is further found that after the receipt of return, the Assessing Officer issued a pre-assessment notice specifically mentioning that the said notice for assessment is issued under section 158BC read with section 158BD, and after considering the assessee’s reply, assessment also was completed under section 158BC read with section 158BD. Further, the very purpose of the provisions made in section 292B is to ensure that defects or minor omissions will not invalidate the return of income filed under the Act for assessment or other proceedings completed under the provisions of the Act. Strangely the Tribunal did not consider relevance of section 292B, but allowed the appeal by merely following the decision of the Division Bench of this Court referred to above.

7. On going through the Division Bench judgment referred to above, we find that the case decided by this Court was one, where after serving notice on an individual under section 148, assessment is made on an AOP. The case decided was not a block assessment. However, in this case, we have found that Annexure D notice was issued under section 158BC because what is called for is return in Form 2B, which is called for only for the purpose of making block assessment under section 158BC, and section 158BD is also mentioned in the notice. It is nothing but a combined notice issued under section 158BC read with section 158BD and the findings of the Tribunal to the contrary is absolutely untenable. In our view, this ground raised by the assessee itself is an after thought because it was raised in the first time as an additional ground in the second appeal stage. We, therefore, answer the question referred in favour of the Revenue and against the assessee.

Therefore, these appeals are allowed vacating the orders of the Tribunal and by restoring both the appeals filed by the assessee and the Department to the Tribunal for fresh decision on merits, after hearing the parties.

[Citation : 344 ITR 281]

Leave a Reply

Your email address will not be published. Required fields are marked *