In the ITAT Ahmedabad Bench ‘A’

Income-tax Officer, Ward 11(2), Ahmedabad

v.

Smt. Sukhini P. Modi

R.P. Garg, Vice President

And I.S. Verma, Judicial Member

IT Appeal Nos. 2268 to 2271 and 2285 (Ahd.) of 2004

C.O. Nos. 206 to 209 and 224 (Ahd.) of 2004

[Assessment years 1996-97 and 1997-98]

January 19, 2007

Section 143, read with sections 147 and 148 of the Income-tax Act, 1961 - Assessment - Issue of notice - Assessment years 1996-97 and 1997-98 - Whether once valid return under section 148 is filed by assessee, provisions of section 143(2) being mandatory in nature, non-issuance of notice under section 143(2) within time-limit prescribed statutorily will render assessment order framed under section 147 read with section 143(3), as invalid - Held, yes - Whether contention of revenue that by insertion of provisos to section 148 by Finance Act, 2006 with retrospective effect from 1-10-1991, time limit of 12 months for issue of notice under section 143(2) has been done away with in cases of reopened assessments cannot be accepted - Held, yes - By issuing notice under section 148, Assessing Officer reopened assessment of assessee on ground that she had not shown sale of certain shares - In response, assessee filed return - Thereafter, Assessing Officer, vide notice under section 142(1), asked for various details from assessee in support of return - Assessee replied and furnished details and information and also requested for copies of certain documents and cross-examination of certain parties - Assessing Officer completed assessment - Assessee challenged validity of said assessment on ground that reassessment was completed without issuance of statutory notice under section 143(2) - As against that, revenue contended that issuance of notice under section 142(1) was to be construed as compliance with notice under section 143(2) and, even otherwise, since assessee participated in reassessment proceedings, she could be said to have waived requirement of service of notice under section 143(2) - Whether since notice in question was issued to comply with directions for requirement under section 142(1) and was not a notice meant for purposes of section 143(2), it could not be said that, in substance, it was issued under section 143(2) - Held, yes - Whether, moreover, since participation of assessee was to comply with requirements of notice under section 142(1) and to produce details called thereunder, it could not be said that there was waiver or acquiescence on part of assessee for issuance of notice under section 143(2) - Held, yes - Whether as a result reassessment order was to be annulled as being bad in law - Held, yes

Facts

For the assessment year 1996-97, the assessee filed its return of income which was processed by the Assessing Officer under section 143(1). No return, however, was filed for the assessment year 1997-98. During the course of investigation, it was found that the assessee had not shown sale of certain shares and no capital gain had been offered for taxation. The Assessing Officer, therefore, issued notice under section 148. In response to the said notice, the assessee filed her return of income for the assessment year 1997-98 and in respect of the assessment year 1996-97, the assessee stated that the return filed earlier should be treated as return pursuant to notice under section 148. Thereafter, notices under section 142(1) were issued for both the assessment years under consideration. The assessee replied by submitting that she had not transferred any shares. The Assessing Officer completed the assessments. On appeal, the assessee submitted that no notice under section 143(2) had been issued by the Assessing Officer within the period prescribed in the first proviso to section 143(2) and only a notice under section 142(1) was issued and, therefore, the assessment framed could not be sustained. The Commissioner (Appeals) observing, that no notice under section 143(2) was issued within a period of one year and only a notice under section 142(1) was issued, annulled the said assessments being bad in law.

On revenue’s appeal :

Held

Whether it is necessary to issue notice under section 143(2) in the cases where assessments were reopened and completed under section 148/147?

Issue as to whether it is necessary to issue notice under section 143(2) in the cases where assessments are reopened and completed under section 148/147, stands covered by the decision of the Special Bench in Rajkumar Chawla v. ITO [2005] 94 ITD 1 (Delhi), in favour of the assessee. It was a case for the assessment year 1995-96 wherein the Bench had held that since the assessing authority had failed to serve the notices within the statutory period provided under section 143(2), he had lost jurisdiction to make assessment under section 143(3), read with section 147. A contrary construction would render the adoption of procedure as prescribed in sections 139 to 143 and other provisions as meaningless. The phrase ‘so far as may be’ in section 148 has been used so as to provide that the provision would be generally applicable but to the extent it is not inconsistent with the express provisions of the adopting legislation. The proviso to section 143(2) nowhere comes in conflict with the provisions of section 147. Had the proviso curtailed the limitation period as prescribed under section 153(2), then certainly it would not apply. The Assessing Officer has to be more vigilant in making assessment pursuant to notice under section 148. Therefore, in almost all the cases, he will issue notice to the assessee for completion of the assessment before the expiry of 12 months from the date of filing a return in response to notice under section 148 and no extra burden is cast upon him by following the proviso to section 143(2). One, therefore, cannot subscribe to the view that it is not practical to follow the proviso. Therefore, full provisions of section 143 including the proviso would be applicable to assessment/reassessment done under section 147. No doubt, the foundation to assess or reassess is laid by issuance of a valid notice under section 148, but such jurisdiction is subject to further compliance as has been stipulated in the statute itself. If compliance of the proviso is not made, the very purpose of creating the proviso is defeated, i.e., uncertainty of the assessee with respect to assessment shall continue. It is again a settled principle of interpretation that no construction of a statute should be made in a manner, which leaves a statute redundant. On the contrary, law requires a strict interpretation of the proviso. Therefore, the provisions of limitation are to be strictly construed. If limitations for making assessments are not followed strictly, chaotic situation would follow. Thus, the return filed pursuant to notice under section 148 must be assumed and treated to be a return filed under section 139 and the assessment must thereafter be made under section 143 or 144 after complying with all the mandatory provisions. Accordingly, it is incumbent upon the assessing authority to issue notice under section 143(2) within the period as stipulated in the proviso thereto. No assessment can be made if the notice under section 143(2) is not served within the time prescribed by the proviso under section 143(2) and, thus, the return filed will be deemed as accepted. Once the return of income is filed in compliance with notice under section 148, the provisions of section 139 shall apply due to mandatory provision of section 148. The notice under section 143(2) is not merely procedural in nature but is a mandatory provision. Once the valid return under section 148 is filed by the assessee, the provisions of section 143(2) being mandatory in nature, the non-issuance of notice under this sub-section within the time-limit prescribed statutorily will render the assessment order passed under section 143(3) as invalid. Therefore, the assessment-framed under section 143(3), read with section 147, shall be invalid. Non-issuance of notice under section 143(2) within the time-limit statutorily prescribed will invalidate an assessment under section 147, read with section 143(3). [Para 16]

What is the nature of notice under section 143(2), i.e., is it procedural or jurisdictional and whether assessment made without issuing notice under section 143(2) is a nullity, or would it only be an irregularity, which can be cured?

Revenue contended that the notice under section 143(2) is procedural in nature; it is issued in order to make the assessment unlike a notice under section 148 which is issued to assuming jurisdiction by the Assessing Officer to assess/reassess; and non-issuance of notice is a procedural irregularity not involving the question of jurisdiction and can be cured by the appellate authority [Para 17]

As per settled legal position that the Assessing Officer gets jurisdiction under the Act for assessment when proceedings are initiated either by suo moto filing of return by the assessee or by issuance of notice requiring him to file the return. In the instant case, there was no scope/occasion for filing a voluntary return for escapement of income and the only provision under which return could be filed was on issue of a notice under section 148. The assessment proceedings for escaped income were initiated by issue of notice under section 148 and, therefore, the Assessing Officer was vested with jurisdiction over the case. The assessee had filed the return pursuant to notices under section 148. Therefore, for making assessment, the Assessing Officer was to issue notice under section 143(2) giving an opportunity to the assessee to produce or cause to be produced the evidence and material to support the income shown in the return of income. This was only after the return was filed and the Assessing Officer had already assumed jurisdiction over the case. The Assessing Officer having assumed valid jurisdiction by issuing a valid notice under section 148, was not further required to assume jurisdiction for second time under any other provision. Not issuing notice under section 143(2) would only be a case of deviation from rule of law resulting in irregularity, which was curable. It would not be a nullity, as it does not touch upon the jurisdiction. On a bare reading of the provisions, it is evident that notice under section 143(2) is issued in order to verify the correctness of the return filed by the assessee. It provides only a procedural step towards making the assessment. It is issued to the assessee to attend and/or to produce or caused to be produced evidence in support of the return. Jurisdiction to assess has already been assumed by the Assessing Officer on filing of the return by the assessee. [Para 19]

Notice under section 143(2) is unlike the notice under section 148, which is a jurisdictional one and confers power on the Assessing Officer to make assessment of income, which has escaped assessment. It is a cardinal proposition, in law, that not issuing notice at all or issuing that beyond statutory period or issue of an invalid notice under section 148 does affect the jurisdiction of the Assessing Officer and would make the assessment/reassessment ‘null and void’ because the notice under this section is not a mere procedural requirement but a condition precedent to assume jurisdiction and to make a valid assessment/reassessment. Absence of such a notice would make the assessment invalid and without jurisdiction. The existence of a valid notice under section 148, being a condition precedent for the exercise of the jurisdiction by the Assessing Officer to assess or reassess under section 147, does not confer any right on the assessee, which he could abandon. Want of a notice affects the jurisdiction of the Assessing Officer to proceed with the assessment and failure to give the requisite notice shall deprive the Assessing Officer of his jurisdiction. [Para 20]

There are many decisions which hold that absence of notice under section 143(2) would not make the assessment null and void; not issuing it can at best be treated as an irregularity liable to be cured and in such a case the assessments could be set aside, to be redone. The lack of notice does not amount to the revenue authority having no jurisdiction over the assessee, but such assessment is defective by reason of notice not having been given. An assessment proceeding does not cease to be a proceeding under the Act merely by reasons of want of notice. It will be a proceeding liable to be challenged and corrected. Thus, it appears to be well-settled that where an authority, who does not lack inherent jurisdiction, acts in contravention of a mandatory provision, it would be open to the aggrieved party to waive its objection to such breach if the provision is not conceived in the public interest but in the interest of the party waiving it. The underlying principle appears to be that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing upon any public right or public policy. In other words, if the statutory conditions are inserted simply for the security or benefit of the party to the proceeding and no public interests are involved, such conditions will not be considered as indispensable and either party may waive them without affecting the jurisdiction of the authority seized of the proceeding. If the assessing authority, in the exercise of his jurisdiction, omits to take one or more of the various procedural steps or in taking any of such steps, commits an error or even deviates from the statutory mandate, the assessment would be null and void, only if the omission, error or breach, as the case may be, is so fundamental as could not be waived because it could affect inherent jurisdiction. The legal representative has a right to waive the advantage of any of the statutory provisions made solely for his protection or benefit and not conceived in public interest. [Para 21]

From the said discussion, it follows that an assessment proceeding does not cease to be a proceeding under the Act merely by reason of want of notice. It will be a proceeding liable to be challenged and corrected. An omission to serve notice or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where such liability is created by distinct substantive provisions (charging sections). Any such omission or defect may render the order made irregular depending upon the nature of the provision not complied with but certainly not void or illegal. At the worst, they are defective proceedings or irregular proceedings liable to be cured. To issue a notice under section 143(2) is mandatory. It is true that the assessment order passed without notice under section 143(2) is invalid and it is vitiated, but the invalidity is not, however, of such a nature, which goes to the root of the proceedings. It could be set aside for being re-done de novo. The Commissioner (Appeals) should not have annulled the assessment. As soon as the return is filed, the ITO gets seisin over the case. He has jurisdiction over it, but on failure to comply with section 143(2), the only limited restriction is that he cannot complete the assessment. Thus, the assessment order completed without service of notice under section 143(2) cannot be said to be ab initio void and when it is not so, the assessment order cannot be annulled. [Para 24]

An assessment proceeding does not cease to be a proceeding under the Act merely by reason of want of notice and it would be a proceeding liable to be challenged and corrected. One of the powers of the Commissioner (Appeals) is to annul an assessment. That is a power to be exercised where the assessment proceeding is a nullity in the sense that the ITO had no jurisdiction ab initio to take the proceeding. A proceeding is a nullity when the authority taking it has no jurisdiction either because of want of pecuniary jurisdiction or of territorial jurisdiction or of jurisdiction over the subject-matter of the proceeding or when the authority taking it has no power to have seisin over the case. The omission of the Assessing Officer to issue a notice under section 143(2) does not affect the ab initio jurisdiction enjoyed by the Assessing Officer in respect of the proceeding. The Assessing Officer had seisin over the case. He had overall jurisdiction over the case and in that sense he had power to initiate the proceeding. The omission to issue a notice under section 143(2) merely prevents the ITO from making an assessment order under section 143(3), and after he rectifies the omission by issuing that notice, he can proceed further to the next stage, that is, to exercise the power of completing the assessment under section 143(3). All these are steps within the overall jurisdiction vested in the ITO over the entire assessment proceeding. The failure of the ITO to issue a notice under section 143(2) does not call for an order by the Commissioner (Appeals) annulling the assessment. The power of setting aside the order of assessment, where it is illegal, is inherent in any appellate Court, and its order would be perfectly legal in directing the ITO to issue notice to the assessee before making an assessment when he was not satisfied regarding the correctness of the assessee’s return. The Commissioner (Appeals) has ample jurisdiction to give directions to the ITO to comply with the requirements of law. He has inherent power to set aside illegal order of assessment and to direct ITO to comply with mandatory requirements while making de novo assessment. [Para 25]

The assessee can waive the right of notice either specifically or by his conduct. When the assessee submitted to the jurisdiction of the Assessing Officer and participated in the proceeding on each date of hearing raising all possible pleas on merits of the case and challenged the validity of service of notice under section 143(2) for the first time in appeal, the Courts held it to be a clear case of waiver and/or abandoning the so-called ground. Further, it is not a ground based on a pure question of law. Question whether a particular notice is properly served on the assessee or not is a mixed question of law and fact. At best it could be regarded as an irregularity in effecting service of the notice on the assessee but not an invalidity as alleged by the assessee so as to annul the entire assessment. The very fact that the assessee, thereafter, appeared before the Assessing Officer and went on participating in the entire proceedings on the merits for more than one year, clearly showed that the so-called illegality/irregularity did not cause any prejudice to the assessee. In other words, the assessee was afforded fullest opportunity to participate in the proceedings. [Para 26]

Even in cases of non-compliance with the provisions of section 144B, it is held to be only a procedural irregularity and no question of jurisdiction is involved in such cases. The scheme of section 144B clearly envisages that the jurisdiction to pass an order, even when there is a variance of rupees one lakh and more between the income returned and the income assessed, is with the ITO, though section 144B provides for a machinery for the service of a draft order on the assessee and a consultation with a superior officer. This is only a procedural matter not involving jurisdiction and, therefore, if there is a procedural irregularity, it can be cured by directing the ITO to frame an assessment after following the correct procedure. [Para 27]

The aforesaid was the situation prior to the introduction of time-limit prescribed for issuing the notice under section 143(2). After the time-limit of 12 months was prescribed by the proviso (as amended by Finance (No. 2) Act, 1991 with effect from 1-10-1991) to this sub-section, the Gujarat High Court in DCIT v. Mahi Vally Hotels & Resorts [2006] 287 ITR 360 has held it to be a mandatory requirement while dealing with a normal assessment under section 143(3). [Para 29]

Effect of retrospective amendment brought by Finance Act, 2006 by inserting proviso to section 148 :

The revenue submitted that by insertion of the provisos to section 148 by the Finance Act, 2006 with retrospective effect from 1-10-1991, the time-limit of 12 months for issue of notice under section 143(2) has been done away with in cases of reopened assessments and, hence, after removal of time-limit for issuance of notice under section 143(2), the requirement for issuing notice under section 143(2), if any, becomes procedural only. The assessee, on the other hand, submitted that the amendment was made to section 148 only and no amendment was made to section 143(2); that the language of the amendment showed that only the notice which was served upon the assessee beyond the statutory period, was validated and nothing more; and that it did not in any way dispense with the requirement of service of notice, and on the contrary, it reaffirmed the said requirement and relaxed the time period only. It was further submitted that it gave a temporary respite for the omission of service of notice within time during a specified period only; post October 2005, requirement of notice and its service within time was not dispensed with and if the Legislature wanted to relax service completely, the easiest way was to omit the proviso to section 143(2) retrospectively so as to restore the position prior to 1989. [Para 30]

On a close reading of the provisions of the inserted provisos to section 148 in the light of the aims and objects, it is evident that provisos save only those notices, which have been served under sub-section (2) of section 143 after the expiry of twelve months specified in the proviso to sub-section (2) of section 143 or served under clause (ii) of sub-section (2) of section 143 and which are in respect of a return furnished during the period commencing on the 1st day of October, 1991 and ending on the 30th day of September, 2005 in response to notices under section 148 and issued before the expiry of the time-limit for making the assessment, reassessment or re-computation as specified in sub-section (2) of section 153. It is true that in effect it lifts the time-limit and dispenses with the time period of twelve months for issuing the notice if it was issued before making the assessment, but on the careful reading of the provisos it is found that it declares only those notices under section 143(2) as valid which are, in fact, issued and that too before the time-limit prescribed under section 153(2) for completing the reassessment and not those which might be issued after the expiry of that period. Even if the assessment is set aside, the Assessing Officer cannot issue the notice under section 143(2) as the fresh assessment would be governed by another provision 153(2A). [Para 32]

whether there was compliance with section 143(2)

The revenue submitted that if the assessee is present before the taxing authority either on issue of a notice or voluntarily appears in the proceeding without service of notice and does not object to the continuance of the proceeding and is heard by the ITO, in regard to the tax liability and invites an assessment on merits, such an assessee must be taken to have exercised the option of abandoning the technical plea that the proceeding has not been validly continued against him, although in substance and reality it has been so continued and, in such circumstances, the assessment is not a nullity. [Para 34]

The revenue further submitted that though notice in question was stated to be under section 142(1), yet the details were required under section 143(2) to which the assessee had replied and had furnished the details and information; and the assessee also requested for copies of certain documents and cross-examination of certain parties so that he might be in position to prove before the Assessing Officer that transfer of shares had not taken place and no capital gains had arisen from that transaction and, therefore, there was substantial compliance with the provisions of section 143(2) even within 12 months. [Paras 35 and 36]

The revenue further submitted that there was no statutory format for notice under section 143(2); it was a non-statutory form (ITNS), and, hence, various letters and show-cause notices issued should be construed as compliance with notice under section 143(2) and merely because section was not mentioned on such letters/show-cause notices, the proceedings could not be treated as null and void. [Para 37]

There was no force in the contentions of the revenue. The provisions of section 143(2) provide that where the Assessing Officer considers it necessary or expedient to verify the correctness and completeness of the return by requiring the presence of the assessee or the production of evidence in this behalf, the Assessing Officer shall serve on the assessee a notice requiring him, on a date to be therein specified, either to attend the Assessing Officer’s office or to produce, or to cause to be produced, any evidence on which the assessee may rely on in support of the return. It was true that the assessee was required vide notice issued under section 142(1) dated 7-3-2002 to appear and produce or cause to be produced the accounts and/or documents specified on 15-3-2002. But the fact remained that it was not a notice meant for the purposes of section 143(2) but to comply with the directions under section 142(1). [Para 38]

Further, the contention of revenue that there was acquiescence, or waiver of service of notice under section 143(2) by participating in the proceedings, could not be accepted as the participation was to comply with the requirements of section 142(1) notice and to produce the details called thereunder. In absence of any notice received by an assessee under section 143(2) as clarified by the CBDT in Circular No. 549 dated 31-10-1989 that returned income of the assessee becomes final and no scrutiny assessment is required to be made. Therefore, the order of the Commissioner (Appeals) was to be upheld. [Para 39]

In the result, the appeal was to be dismissed.

Case review :

Rajkumar Chawla v. ITO [2005] 94 ITD 1 (Delhi)(SB)(Para 16); Y. Narayana Chetty v. ITO [1959] 35 ITR 388 (SC); CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147 (SC); CIT v. Kurban Hussain Ibrahimji Mithiborwala [1971] 82 ITR 821 (SC); Nayalchand Malukchand Dagli v. CIT [1966] 62 ITR 102 (Guj.); Madan Lal Agarwal v. CIT [1983] 144 ITR 745 (All.); P.N. Sasikumar v. CIT [1988] 170 ITR 80/[1987] 35 Taxman 131 (Ker.); ITO v. Electro Steel Castings Ltd. [2003] 264 ITR 410 (Cal.); Ghanshyamdass v. Regional Asstt. CST [1964] 51 ITR 557 (SC); Brij Bushan Lal v. CIT [1971] 81 ITR 497 (Punj. & Har.); T.A. George v. Agricultural ITO [1985] 153 ITR 721 (Ker.); CIT v. Hindusthan Steel Ltd. [1989] 179 ITR 213/45 Taxman 273 (Cal.) followed (para 20).

Cases referred to

R. Dalmia v. CIT [1999] 236 ITR 480/102 Taxman 702 (SC) (para 4), Asstt. CIT v. Santosh Kumar [2003] 87 ITD 107 (All.) (para 4), Uma Polymers (P.) Ltd. v. Asstt. CIT [2002] 123 Taxman 226 (Mum.) (Mag.) (para 4), Dr. Partap Singh v. Director of Enforcement [1985] 155 ITR 166/22 Taxman 30 (SC) (para 14), Rajkumar Chawla v. ITO [2005] 94 ITD 1 (Delhi)(SB) (para 15), Smt. Kamla Devi Todi v. CIT [1988] 174 ITR 414/40 Taxman 135 (Gau.) (para 15), Vipin Khanna v. CIT [2002] 255 ITR 220/122 Taxman 1 (Punj. & Har.) (para 15), Asstt. CIT v. Baikunth Nath Singhal [2004] 89 ITD 109/1 SOT 296 (Agra) (para 15), Mrs. C. Malathy v. ITO [2004] 88 ITD 37 (Chennai) (para 15), Rakesh S. Mardia v. Dy. CIT [2002] 74 TTJ (Ahd.) 836 (para 16), CIT v. Tripple Crown Agencies [1993] 204 ITR 377 (Gau.) (para 16), M.S. Kimtee v. CIT [1985] 151 ITR 73 (MP) (para 17), H.H. Maharaja Raja Pawer Dewas v. CIT [1982] 138 ITR 518/[1983] 15 Taxman 363 (MP) (para 17), Prabhudayal Amichand v. CIT [1989] 180 ITR 84/44 Taxman 213 (MP) (para 17), Ghanshyam Das v. Regional Asstt. CST [1964] 51 ITR 557 (SC) (para 17), Dy. CIT v. Mahi Valley Hotels & Resorts [2006] 287 ITR 360 (Guj.) (para 18), Suratwala [IT Appeal Nos. 3218-19 & 3203-04 (Ahd.) of 2004] (para 18), Y. Narayana Chetty v. ITO [1959] 35 ITR 388 (SC) (para 20), CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147 (SC) (para 20), CIT v. Kurban Hussain Ibrahimji Mithiborwala [1971] 82 ITR 821 (SC) (para 20), Nayalchand Malukchand Dagli v. CIT [1966] 62 ITR 102 (Guj.) (para 20), Madan Lal Agarwal v. CIT [1983] 144 ITR 745 (All.) (para 20), P.N. Sasikumar v. CIT [1988] 170 ITR 80/[1987] 35 Taxman 131 (Ker.) (para 20), ITO v. Electro Steel Castings Ltd. [2003] 264 ITR 410 (Cal.) (para 20), Brij Bushan Lal v. CIT [1971] 81 ITR 497 (Punj. & Har.) (para 20), T.A. George v. Agricultural ITO [1985] 153 ITR 721 (Ker.) (para 20), CIT v. Hindusthan Steel Ltd. [1989] 179 ITR 213/45 Taxman 273 (Cal.) (para 20), CIT v. Shivanand Electronics [1994] 209 ITR 63/75 Taxman 93 (Bom.) (para 21), Director of Inspection of IT (Investigation) v. Pooran Mall & Sons [1974] 96 ITR 390 (SC) (para 21), Topline Shoes Ltd. v. Corpn. Bank [2002] 6 SCC 33 (para 21), Estate of Late Rangalal Jajodia v. CIT [1971] 79 ITR 505 (SC) (para 21), CIT v. Jai Prakash Singh [1996] 219 ITR 737/85 Taxman 407 (SC) (para 21), Chatturam v. CIT [1947] 15 ITR 302 (FC) (para 21), CIT v. Gyan Prakash Gupta [1987] 165 ITR 501/[1986] 26 Taxman 1 (Raj.) (para 21), Sant Baba Mohan Singh v. CIT [1973] 90 ITR 197 (All.) (para 21), Rattan Lal Tiku v. CIT [1974] 97 ITR 553 (J&K) (para 21), Jai Prakash Singh v. CIT [1978] 111 ITR 507 (Gau.) (para 21), C.G.G. Panicker v. CIT [1999] 237 ITR 443 (Ker.) (para 21), Guduthur Bros. v. ITO [1960] 40 ITR 298 (SC) (para 21), CIT v. Premium Capital Market & Investment Ltd. [2005] 275 ITR 260 (MP) (para 21), Banarasidas Bhanot & Sons v. CIT [1981] 129 ITR 488/6 Taxman 62 (MP) (para 21), CIT v. Sumatbhai C. Munshaw [1981] 128 ITR 142/5 Taxman 27 (Guj.) (para 21), Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi AIR 1959 SC 492 (para 21), Dhirendra Nath Gorai & Subal Chandra Shaw v. Sudhir Chandra Ghosh AIR 1964 SC 1300 (para 21), Ashutosh Sikdar v. Behari Lal Kirtania [1907] ILR 35 Cal. 61 (FB) (para 21), Holmes v. Russel [1841] 9 Dowl 487 (para 21), Anowar Hussain v. Ajoy Kumar Mukherjee AIR 1965 SC 1651 (para 21) and CIT v. Sun Engg. Works (P.) Ltd. [1992] 198 ITR 297/64 Taxman 442 (SC) (para 23).

Dr. Banwarilal for the Appellant.

M.K. Patel for the Respondent.