CHAND BIHARI AGRAWAL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) The questions of law arising for consideration from the order of the Tribunal are re-framed as follows:

(2.) On the facts leading to the order of the Tribunal it has to be noticed that a search and seizure was conducted in the residential-cum-business premises of the appellant on 27/2/2003. On the basis of the alleged recovery made, a notice under Sec. 158BC of the Income Tax Act (for brevity 'the Act') was issued on 09/10/12/2003. The appellant was directed to file a return within a period of one month. A further notice under Sec. 142 (1) of the Act was issued on 9/11/2004 wherein again the assessee was required to file a return in response to the notice issued under Sec. 158BC issued earlier. The appellant filed a return on 22/11/2004 declaring undisclosed income of Rs.2,25,000.00. An order was passed under Sec. 158BC of the Act determining undisclosed income of Rs.7,71,955.00.

(3.) The assessment was completed without any notice under Sec. 143(2) of the Act, but noticing in the order, that the assessee had ultimately filed the return of income in the prescribed form on 22/11/2004. The assessee took up the matter in first appeal before the first appellate authority which turned unsuccessful as is indicated from Annexure-2. A further appeal was taken to the Tribunal which also stood rejected. The Tribunal found that there is an outer limit of 45 days prescribed for a notice to the return to be filed under Sec. 158BC and any return filed after the said period would be non-est, thus enabling the assessing officer to proceed for assessment without any further notice under Sec. 143(2). The Tribunal also found that the absence of notice, if at all relevant would stand cured going by the provisions of Sec. 292BB, which though brought into the statute later to the assessment order, was merely a procedural clarification. It was further held that Sec. 292BB gave statutory effect to the principle of waiver and acquiescence; which would apply since the assessee appeared and co-operated in the enquiry relating to the assessment without demur.