Shri.Kalyanasundaram Swaminathan vs The Deputy Commissioner Of on 7 July, 2026

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    Madras High Court

    Shri.Kalyanasundaram Swaminathan vs The Deputy Commissioner Of on 7 July, 2026

    Author: C.Saravanan

    Bench: C.Saravanan

        2026:MHC:2896
    
    
                                                                                 W.P.Nos.2485 and 2495 of 2019
    
                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
    
                                             Reserved on            28.04.2026
    
                                             Pronounced on          07.07.2026
    
    
                                                           CORAM :
                                      THE HONOURABLE MR. JUSTICE C.SARAVANAN
    
    
                                              W.P.Nos.2485 and 2495 of 2019
                                                           and
                                           W.M.P.Nos.2766, 2767 and 2771 of 2019
    
                      Kalyanasundaram Swaminathan
                      S/o.T.M.Kalyanasundaram                        … Petitioner in both W.Ps
    
                                                              Vs.
    
                      The Deputy Commissioner of Income Tax,
                      Corporate Circle 1(1),
                      Chennai – 34.                          … Respondent in both W.Ps
    
                      Prayer in W.P.No.2485 of 2019: Writ Petition filed under Article 226 of the
    
                      Constitution of India, for issuance of a Writ of Certiorari, to call for the
    
                      records on the files of the Respondent dated 26.12.2018, relating to the
    
                      Assessment Year 2011-2012, passed under Section 143(3) read with Section
    
                      147 of the Income Tax Act, 1961 and quash the same as being without
    
                      jurisdiction, invalid and illegal.
    
                      Prayer in W.P.No.2495 of 2019: Writ Petition filed under Article 226 of the
    
                      Constitution of India, for issuance of a Writ of Certiorari, to call for the
    
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                                                                                 W.P.Nos.2485 and 2495 of 2019
    
                      records on the files of the Respondent dated 29.03.2018 issued in Notice
    
                      No.ITBA/AST/S/148/2017-18/1009532577(1), and quash the same as being
    
                      without jurisdiction, invalid and illegal.
    
    
                                      For Petitioner    : Ms.G.Vardini Karthik
                                      (In both W.Ps)
    
                                      For Respondent    : Mr.Avinash Krishnan Ravi
                                      (In both W.Ps)      Junior Standing Counsel
    
    
                                                       COMMON ORDER
    
    

    By this Common Order, both these Writ Petitions are being disposed

    of.

    SPONSORED

    2. In W.P.No.2485 of 2019, the Petitioner has challenged the impugned

    Assessment Order dated 26.12.2018 passed for the Assessment Year 2011-

    2012 under Section 143(3) read with Section 147 of the Income Tax Act,

    1961 (hereinafter referred to as the ‘Act’).

    3. In W.P.No.2495 of 2019, the Petitioner has challenged the impugned

    Section 148 Notice dated 29.03.2018 issued to the Petitioner.

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    4. The challenge to the impugned Assessment Order is primarily on the

    ground that the impugned Assessment Order dated 26.12.2018 has been

    passed without following the due procedure prescribed under Section 143(2)

    read with Section 148 of the Act.

    5. On perusal of the records before this Court reveals that originally the

    Petitioner had filed a Return of Income under Section 139(1) of the Act on

    31.07.2011. In the said Return of Income, the Petitioner had declared only a

    sum of Rs.8,30,997/- as a gross total taxable income.

    6. The Return was also processed under Section 143(1) of the Act on

    15.10.2011. Subsequently, a summons was issued to the Petitioner on

    21.08.2012 under Section 272A of the Act in response to which, the

    Petitioner replied on 28.08.2012, 29.08.2012 and 05.10.2012.

    7. In this background, the Petitioner filed a Revised Return under

    Section 139(4) of the Act on 11.09.2012. In the Revised Return, the

    Petitioner declared a gross total taxable income of Rs.17,29,621/- and paid a

    sum of Rs.4,34,512/- towards income tax.

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    8. The Revised Return that was filed by the Petitioner under Section

    139(4) of the Act was followed with a Section 148 Notice dated 29.03.2018.

    9. In response to Section 148 Notice dated 29.03.2018, the Petitioner

    filed a Return on 22.05.2022 wherein the Petitioner reiterated the content of

    Revised Return filed under Section 139(4) of the Act on 11.09.2012.

    10. After the Petitioner filed the aforesaid Return of Income, the

    Petitioner was furnished with the reasons for reopening of assessment on

    08.06.2018, wherein it was stated as under:-

    “As requested by you the reasons for reopening of
    Assessment for Assessment Year 2011-2012 is as under:

    The assessee, is the founder of M/s.Smartlearn
    Edutech (P) Ltd, and has filed his return of income for
    the Assessment Year 2011-2012 on 31.07.2011 admitting
    total income of Rs.8,16,000/- after claiming Chapter VIA
    deduction to the tune of Rs.15,000/-. The return was
    processed and completed under Section 143(1) of the
    Income-tax Act, 1961, on 15.10.2011. The case was not
    selected for scrutiny for the Assessment Year 2011-2012.

    2. Based on the information received from
    DDIT(Inv), Unit II(2), Chennai, in the case of
    M/s.Smartlearn Edutech (P) Ltd, it is seen that
    M/s.Smartlearn Edutech (P) Ltd was the brainchild of
    Shri K.Swaminathan, who founded the company which

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    offered IIT/JEE course material online to aspirants.

    After sometime, all the assets of this company was sold
    to M/s.Edserve Ltd for a consideration of Rs.2 crores.
    However, M/s.Edserve which took over this company
    insisted that the said sale of Rs.2 crores would be sent to
    Shri Swaminathan and in turn he should sent back this
    sum of M/s.Edserve which would allot shares to him on
    agreed price. Thus, on 04.11.2010, M/s.Aspire Telecom
    Pvt. Ltd. Shri Swaminathan’s account (A/c
    No.602605053105) was credited with Rs.2 crores and on
    the same day Rs.2 crores was sent back to M/s.Edserve
    and they allotted 93458 shares of Rs.214/- per share.
    On further enquiry, Shri.Swaminathan was asked to
    state that what were the other benefits received by him in
    his individual capacity. He had stated that he received
    Rs.42,65,000/- as non compete fee from Edserve Ltd.

    3. On verification of the Return of Income filed by
    the assessee for the Assessment Year 2011-2012 as well
    as the computation of total income, it is seen that the
    assessee has reported a total income of Rs.8,16,000/-
    comprising of salary and income from other sources
    being interest income. The assessee has neither
    reported the receipt of non-competent fee as per the
    return filed nor furnished the working of any capital
    gains or business income arising out of the same.
    Therefore, there is clearly an escapement of income in
    this case for the Assessment Year 2011-2012 on account
    of non reporting of the non-compete fee received by the
    assessee from M/s.Edserve Ltd to the tune of
    Rs.42,65,000/-.

    4. In this case, a return of income was filed for the
    year under consideration but no scrutiny assessment
    under Section 143(3) of the Act was made. Accordingly,
    in this case, the only requirement to initiate proceeding
    under Section 147 of the Act is reason to believe which
    has been recorded above in Paragraph 2 above.

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    It is pertinent to mention here that in this case the
    assessee has filed return of income for the year under
    consideration but no assessment as stipulated under
    Section 2(40) of the Act was made and the return of
    income was duly processed under Section 143(1) of the
    Act. In view of the above, provisions of Clause (b) of
    Explanation 2 to Section 147 are applicable to facts of
    this case and the Assessment Year under consideration is
    deemed to be a case where income chargeable to tax has
    escaped assessment.”

    11. In this background, the Petitioner sent a reply on 03.10.2018

    wherein the Petitioner has stated that in the Revised Return dated 11.09.2012

    filed under Section 139(4) of the Act, the Petitioner had admitted an income

    of Rs.42,65,000/- as “non-compete fee” received from M/s.Edserve Soft

    Systems Limited.

    12. In these circumstances, the Notice under Section 142(1) of the Act

    was issued to the Petitioner on 20.11.2018 wherein, the Petitioner was called

    upon to submit the details of “non-compete fee” and the “business loss”

    which was written-off by the Petitioner.

    13. In the Reply dated 26.11.2018, the Petitioner has stated that he had

    filed the Revised Return on 11.09.2012 showing a receipt of Rs.42,65,000/-

    towards “non-compete fee”, and that the Petitioner had booked an amount of

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    Rs.27,97,576/- towards “business loss” which was written-off as the

    Petitioner could not recover the money due from M/s.Aspire Learning

    Company Private Limited due to severe financial crisis.

    14. That apart, it was stated that many of the documents were lost

    during 2015 flood. In this background, a Notice under Section 142(1) of the

    Act was issued once again on 14.12.2018. The Petitioner had replied to the

    Section 142(1) Notice on 17.12.2018, 20.12.2018 and 24.12.2018.

    15. After participating in the proceedings and after the above reply was

    given by the Petitioner, the impugned Assessment Order was passed by the

    Respondent on 26.12.2018 in furtherance of the impugned Section 148

    Notice dated 29.03.2018.

    16. Learned counsel for the Petitioner would draw attention to the

    express language in Section 143(2) of the Act and the express language in

    Section 148 of the Act as it stood during the period in dispute.

    17. Specifically, the learned counsel for the Petitioner would draw

    reference to Section 143(2) of the Act as it stood during the period in dispute.

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    It is submitted that after the Return was filed on 22.05.2018 in response to the

    impugned Section 148 Notice dated 29.03.2018, the Assessing Officer or the

    prescribed Income Tax Authority was required to issue a Notice specifying

    the date to attend the Office of the Assessing Officer and/or to produce, or

    cause to be produced before such Officer any evidence on which the assessee

    may rely in support of the Return.

    18. Text of Section 143(2) of the Act reads as under:-

    “143. Assessment:

    (1) …..

    (2) Where a return has been furnished under Section
    139
    , or in response to a notice under sub-section (1) of
    section 142, the Assessing Officer or the prescribed
    income-tax authority, as the case may be, if, considers it
    necessary or expedient to ensure that the assessee has
    not understated the income or has not computed
    excessive loss or has not under-paid the tax in any
    manner, shall serve on the assessee a notice requiring
    him, on a date to be specified therein, either to attend the
    office of the Assessing Officer or to produce, or cause to
    be produced before the Assessing Officer any evidence
    on which the assessee may rely in support of the return.

    Provided that no notice under this sub-section shall be
    served on the assessee after the expiry of six months
    from the end of the financial year in which the return is
    furnished.”

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    19. It is submitted that as per Section 148 of the Act as it stood during

    the period in dispute, the provisions of the Act so far as may apply as if such

    Returns were required to be furnished under Section 139(1) of the Act.

    20. A reference was made to the following decisions of the Hon’ble

    Supreme Court, Allahabad High Court, Delhi High Court and that of this

    Court:-

    i. Assistant Commissioner of Income-tax Vs. Hotel Blue
    Moon
    , [2010] 188 Taxman 113 (SC).

    ii. GKN Driveshafts (India) Limited Vs. Income-Tax
    Officer and others
    , [2003] 259 ITR 19 (SC).
    iii.
    Commissioner of Income-tax-II, Lucknow Vs. Salarpur
    Cold Storage (P
    .) Ltd., [2014] 50 taxmann.com 105
    (Allahabad).

    iv. Principal Commissioner of Income-tax Vs. Shri Jai Shiv
    Shankar Traders (P
    .) Ltd., [2015] 64 taxmann.com 220
    (Delhi).

    v. Principal Commissioner of Income-Tax Vs. Staunch
    Marketing Private Limited
    , [2018] 404 ITR 299 (Del.).

    vi. Sapthagiri Finance & Investments Vs. Income-tax
    Officer, Ward I
    (4), Kanchipuram, [2012] 25
    taxmann.com 341 (Mad.)
    vii.
    Commissioner of Income-Tax Vs. Gitsons Engineering
    Co.
    , [2015] 370 ITR 87 (Mad.)
    viii.
    Martech Peripherals Private Limited Vs. Deputy
    Commissioner of Income-Tax and another, [2017] 394
    ITR 733 (Mad.)
    ix. Ms.Jayanthi Natarajan Vs. Assistant Commissioner of
    Income-Tax
    , [2018] 401 ITR 215 (Mad.)

    x. Tractors and Farm Equipment Limited Vs. Assistant
    Commissioner of Income-Tax
    , [2018] 409 ITR 369
    (Mad.)

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    21. It is, therefore, submitted that the proceedings has to abate after

    Section 148 Notice was issued in the absence of a Notice under Section

    143(2) of the Act.

    22. Learned Junior Standing Counsel for the Respondent on the other

    hand would place reliance on the decision of the Division Bench of this Court

    in Avera T & D India Limited Vs. Assistant Commissioner of Income-

    tax, [2007] 165 Taxman 123 (Madras).

    23. Apart from the above, the learned Junior Standing Counsel for the

    Respondent has also placed reliance on the decision of the Hon’ble Supreme

    Court and that of the Delhi High Court:-

    i. Jakhotia Platics (P.) Limited Vs. Principal
    Commissioner of Income-tax
    , [2018] 94 taxmann.com 96
    (SC).

    ii. Director of Income-tax (IT)-II Vs. Black & Veatch
    Prichard, Inc.
    , [2019] 107 taxmann.com 290 (SC).
    iii.
    Principal Commissioner of Income-tax (Central)-3, New
    Delhi Vs. Jakhotia Plastics (P
    .) Limited, [2018] 94
    taxmann.com 89 (Delhi).

    24. Learned Junior Standing Counsel for the Respondent would submit

    that the assessment proceedings cannot abate even if there was any

    procedural irregularity committed.

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    25. By way of rejoinder, the learned counsel for the Petitioner would

    submit that the decision of the Division Bench of this Court in Areva T & D

    India Limited Vs. Assistant Commissioner of Income-tax, [2007] 165

    Taxman 123 (Madras) was rendered prior to the decision of the Hon’ble

    Supreme Court in Hotel Blue Moon’s case (referred to supra) and therefore,

    it cannot be held to have any precedential value.

    26. I have considered the arguments advanced by the learned counsel

    for the Petitioner and the learned Junior Standing Counsel for the

    Respondent. I have also perused the records and affidavit and counter

    affidavit filed on behalf of Petitioner and the Respondent. I have also

    examined the provisions of the Act.

    27. The point for consideration is whether Section 143(2) Notice was

    required to be issued to the Petitioner or not before proceeding to pass the

    impugned Assessment Order dated 26.12.2018.

    28. The Division Bench of this Court in Sapthagiri Finance &

    Investments Vs. Income-tax Officer, Ward I(4), Kanchipuram, [2012] 25

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    taxmann.com 341 (Mad.) was rendered in the context of an Assessment

    Order passed pursuant to a Section 148 Notice.

    29. In Paragraph No.12 of the Order, the Division Bench of this Court

    observed as under:-

    “12. As far as the contention of the Revenue that
    failure to issue notice under Section 143(2) of the Act is only
    curable defect is concerned, the decision relied on by the
    assessee reported in Hotel Blue Moon’s case (supra), also
    covers the said issue. It is no doubt true that the said
    decision
    dealt with the assessment done under Chapter XIV
    relating to block assessment. The assessee therein raised a
    contention that the failure to issue notice under Section
    143(2)
    within the prescribed time for the purpose of block
    assessment could be fatal to the validity of the assessment
    made under Chapter XIVB of the Income Tax Act, 1961. In
    other words, the assessee contended that the issuance of
    notice under Section 143(2) within the prescribed period of
    time for the purpose of block assessment is mandatory for
    assessing the assessee’s undisclosed income found during the
    search. The Revenue took the stand that issue of notice under
    Section 143(2) of the Act was only procedural irregularity
    which was curable. The Apex Court pointed out to Section
    158BC(b)
    provided for determination of the undisclosed
    income of the block period in the manner laid down in
    Section 158BB and the provisions of Section 142, sub
    sections (2) and (3) of Section 143, Section 144 and Section
    145
    shall, so far as may be, apply. The Apex Court pointed
    out after return is filed, the Assessing Officer has to follow
    the procedure like the issue of notice under Section
    143(2)
    /142 and complete the assessment under Section
    143(3)
    . In the event, the assessee is not filing the return or
    not complying with the notice under Section 143(2)/142, the
    Officer is authorised to complete the assessment ex parte
    under Section 144. The Apex Court further pointed out that
    notice under Section 143(2) would become necessary only

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    where the block return does not conform undisclosed income
    inferred by the authorities. Thus, if an assessment is to be
    completed under Section 143(3) read with Section 158BC,
    notice under Section 143(2) should be issued within one
    year from the date of filing of the block return. The Apex
    Court further held that omission on the part of the assessing
    authority to issue notice under Section 143(2) cannot be a
    procedural irregularity and the same is not curable, and
    therefore, the requirement of notice under Section
    143(2)
    cannot be dispensed with. The legislation referring to
    the compliance of the provisions under Section 143, 144 and
    145 of the Act is a legislation by incorporation. Thus, where
    the Assessing Officer repudiates the return filed by the
    assessee in response to notice under Section 158BC(a), the
    Assessing Officer must necessarily issue notice under
    Section 143(2) of the Act. Dealing with the contention that
    the issue of notice is not mandatory but optional and is to be
    applied to the extent practicable, in view of expression “so
    far as may be” in Section 153BC(b), the Apex Court pointed
    out that the expression “so far as may be” has always been
    construed to mean that those provisions may be generally
    followed to the extent possible. Rejecting the contention of
    the Revenue that it is not expedient to follow the provisions
    under Sections 142 and 143(2) and (3) strictly for the
    purpose of block assessment, the Apex Court held that in
    completing the assessment, when the officer repudiates the
    return filed under Section 158BC(a) proceeds to make an
    enquiry, he has necessarily to follow the provisions
    of Section 142 and 143(2) and (3) of the Act.”

    30. The decision of the Hon’ble Supreme Court in Hotel Blue Moon’s

    case referred to supra dealt with the special procedure for making assessment

    of search cases under Chapter XIV-B of the Act as it stood then. There, the

    said appeal arose from the decision of the Gauhati High Court which framed

    the following substantial question of law:-

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    (1) Whether, on the facts and in circumstances of the case
    the issuance of notice under Section 143(3) of the
    Income Tax Act, 1961 within the prescribed time-limit
    for the purpose of making the assessment 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 under Section 68 of the Income Tax Act,
    1961 should be deleted or set aside.

    31. The Gauhati High Court there held that the provisions of Section

    142 and Section 143(3) will have to be mandatorily applied in a case where

    the Assessing Officer repudiates a Return in response to a Notice issued in

    Section 158BC(a) of the Act and proceedings.

    32. In Hotel Blue Moon’s case referred to supra, the Hon’ble Supreme

    Court ultimately framed the following question of law in Paragraph No.7

    which reads as under:-

    “7. The only question that arises for our
    consideration in this batch of appeals is, whether
    service of notice on the assessee under Section 143(2)
    within the prescribed period of time is a prerequisite
    for framing the block assessment under Chapter XIV-B
    of the Income Tax Act, 1961
    .”

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    33. Section 158BC of the Act which fell for interpretation before the

    Hon’ble Supreme Court in the above case reads as under:-

    “158BC. Procedure for block assessment:-

    Where any search has been conducted under Section 132
    or books of account, other documents or assets are
    requisitioned under Section 132A, in the case of any
    person, then,-

    [(a) the Assessing Officer shall-

    i. in respect of search initiated or books of account or
    other documents or any assets requisitioned after the
    30th day of June, 1995, but before the 1st day of January,
    1997, serve a notice to such person requiring him to
    furnish within such time not being less than fifteen days;
    ii. in respect of search initiated or books of account or
    other documents or any assets requisitioned on or after
    the 1st day of January, 1997, serve a notice to such
    person requiring him to furnish within such time not
    being less than fifteen days but not more than forty-five
    days,
    as may be specified in the notice a return in the
    prescribed form and verified in the same manner as a
    return under Clause (I) of Sub-Section (1) of Section
    142
    , setting forth his total income including the
    undisclosed income for the block period:
    Provided that no notice under Section 148 is required to
    be issued for the purpose of proceeding under this
    Chapter:

    Provided further that a person who has furnished a
    return under this Clause shall not be entitled to file a
    revised return:]

    (b) the Assessing Officer shall proceed to determine the

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    undisclosed income of the block period in the manner
    laid down in Section 158BB and the provisions of
    Section 142, Sub-Sections (2) and (3) of Section 143
    and Section 144 shall, so far as may be, apply;

    (c) the Assessing Officer, on determination of the
    undisclosed income of the block period in accordance
    with this Chapter, shall pass an order of assessment and
    determine the tax payable by him on the basis of such
    assessment;

    (d) the assets seized under Section 132 or requisitioned
    under Section 132A shall be retained to the extent
    necessary and the provisions of Section 132B shall apply
    subject to such modifications as may be necessary and
    the references to “regular assessment” or
    “reassessment” in Section 132B shall be construed as
    references to “block assessment”.”

    34. The Hon’ble Supreme Court answered the question of law and

    affirmed in favour of the Respondent Assessee therein and against the

    Appellant/Income Tax Department.

    35. As per the said provision as it stood then, which has been captured

    in Paragraph Nos.21 to 26 of the said decision, it is clear that the provisions

    of Section 142, Sub-Sections (2) and (3) of Section 143 and Section 144

    shall, so far as may be, apply.

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    36. The Hon’ble Supreme Court took note of the express language in

    Section 158BC(b) of the Act and held that the Assessing Officer, if for any

    reason, repudiates the Return filed by the Assessee in response to Notice

    under Section 158-BC(a), the Assessing Officer must necessarily issue Notice

    under Section 143(2) of the Act within the time prescribed in the Proviso to

    Section 143(2) of the Act. The Hon’ble Supreme Court did not agree with

    the submissions of the Revenue, observing that it did not see any reason to

    restrict the scope and meaning of the expression ‘so far as may be apply’.

    37. In the above decision, the Hon’ble Supreme Court also took note of

    the clarification in Clause (e) of the Central Board of Direct Taxes (CBDT) in

    its Circular No.717 dated 14.08.1995, [1995] 215 ITR 70] wherein it was

    stated as under:-

    “(e) Procedure for making block assessment:

    i. The Assessing Officer shall serve a Notice on such
    person requiring him to furnish within such time, not
    being less than 15 days, as may be specified in the
    Notice, a return in the prescribed form and verified in
    the same manner as a return under Clause (i) of Sub-
    Section (1) of Section 142 setting forth his total income
    including undisclosed income for the block period. The
    Officer shall proceed to determine the undisclosed

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    income of the block period and the provisions of Section
    142
    , Sub-Sections (2) and (3) of Section 143 and Section
    144
    shall apply accordingly…”.

    38. Paragraph Nos.21 to 26, from the above decision of the Hon’ble

    Supreme Court in Hotel Blue Moon’s case referred to supra is reproduced

    below:-

    “21. We may now revert back to Section 158-BC(b) which is
    the material provision which requires our consideration. Section
    158-BC(b)
    provides for enquiry and assessment. The said provision
    reads that:

    “158-BC. (b) the assessing officer shall proceed to
    determine the undisclosed income of the block period in
    the manner laid down in Section 158-BB and the
    provisions of Section 142, sub-sections (2) and (3) of
    Section 143, Section 144 and Section 145 shall, so far as
    may be, apply;”
    An analysis of this sub-section indicates that, after the return is filed,
    this clause enables the assessing officer to complete the assessment
    by following the procedure like issue of notice under Sections
    143(2)
    /142 and complete the assessment under Section 143(3). This
    section does not provide for accepting the return as provided under
    Section 143(1)(a). The assessing officer has to complete the
    assessment under Section 143(3) only. In case of default in not filing
    the return or not complying with the notice under Sections
    143(2)
    /142, the assessing officer is authorised to complete the
    assessment ex parte under Section 144.

    22. Clause (b) of Section 158-BC by referring to Sections
    143(2)
    and (3) would appear to imply that the provisions of Section
    143(1)
    are excluded. But Section 143(2) itself becomes necessary
    only where it becomes necessary to check the return, so that where
    block return conforms to the undisclosed income inferred by the

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    authorities, there is no reason, why the authorities should issue
    notice under Section 143(2). However, if an assessment is to be
    completed under Section 143(3) read with Section 158-BC, notice
    under Section 143(2) should be issued within one year from the date
    of filing of block return. Omission on the part of the assessing
    authority to issue notice under Section 143(2) cannot be a
    procedural irregularity and the same is not curable and, therefore,
    the requirement of notice under Section 143(2) cannot be dispensed
    with.

    23. The other important feature that requires to be noticed is
    that Section 158-BC(b) specifically refers to some of the provisions
    of the Act which requires to be followed by the assessing officer
    while completing the block assessments under Chapter XIV-B of the
    Act
    . This legislation is by incorporation. This section even speaks of
    sub-sections which are to be followed by the assessing officer. Had
    the intention of the legislature was to exclude the provisions of
    Chapter XIV of the Act, the legislature would have or could have
    indicated that also. A reading of the provision would clearly
    indicate, in our opinion, if the assessing officer, if for any reason,
    repudiates the return filed by the assessee in response to notice
    under Section 158-BC(a), the assessing officer must necessarily
    issue notice under Section 143(2) of the Act within the time
    prescribed in the proviso to Section 143(2) of the Act. Where the
    legislature intended to exclude certain provisions from the ambit of
    Section 158-BC(b) it has done so specifically. Thus, when Section
    158-BC(b)
    specifically refers to applicability of the proviso thereto
    cannot be excluded.

    24. We may also notice here itself that the clarification given
    by CBDT in its Circular No. 717 dated 14-8-1995 [(1995) 215 ITR
    (St) 70], has a binding effect on the Department, but not on the
    Court. This circular clarifies the requirement of law in respect of
    service of notice under sub-section (2) of Section 143 of the Act.

    Accordingly, we conclude even for the purpose of Chapter XIV-B of
    the Act
    , for the determination of undisclosed income for a block
    period under the provisions of Section 158-BC, the provisions of
    Section 142 and sub-sections (2) and (3) of Section 143 are
    applicable and no assessment could be made without issuing notice
    under Section 143(2) of the Act.

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    25. However, it is contended by Shri Shekhar, learned counsel
    for the Department that in view of the expression “so far as may be”
    in Section 158-BC(b), the issue of notice is not mandatory but
    optional and are to be applied to the extent practicable. In support of
    that contention, the learned counsel has relied on the observation
    made by this Court in Dr. Partap Singh case [(1985) 3 SCC 72 :

    1985 SCC (Cri) 312 : 1985 SCC (Tax) 352 : (1985) 155 ITR 166] .
    In this case, the Court has observed that: (SCC p. 80, para 12)
    “12. Section 37(2) provides that ‘the provisions of the
    Code relating to searches, shall so far as may be, apply to
    searches directed under Section 37(1)’. Reading the two
    sub-sections together it merely means that the methodology
    prescribed for carrying out the search provided in Section
    165
    has to be generally followed. The expression ‘so far as
    may be’ has always been construed to mean that those
    provisions may be generally followed to the extent
    possible.”

    26. The learned counsel for the respondent has brought to our
    notice the observations made by this Court in Maganlal v. Jaiswal
    Industries
    [(1989) 4 SCC 344] , wherein this Court while dealing
    with the scope and import of the expression “as far as practicable”
    has stated: (SCC p. 359, para 28)
    “28.
    … Without anything more the expression ‘as far
    as [possible] [Ed.: The original word in Maganlal case,
    (1989) 4 SCC 344, is “practicable”.] ’ will mean that
    the manner provided in the code for attachment or sale
    of property in execution of a decree shall be applicable
    in its entirety except such provision therein which may
    not be practicable to be applied.””

    39. It is in this background, in Paragraph Nos.16 and 17, the Hon’ble

    Supreme Court held as under:-

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    “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 Section 142, Sub-Sections (2)
    and (3) of Section 143 strictly for the purposes of block
    assessments. We do not agree with the submissions of
    the learned counsel for the Revenue, since we do not
    see any reason to restrict the scope and meaning of the
    expression ‘so far as may be apply’. In our view,
    where the Assessing Officer in repudiation of the
    return filed under Section 158BC(a) proceeds to make
    an enquiry, he has necessarily to follow the provisions
    of Section 142, Sub-Sections (2) and (3) of Section 143.

    17. Section 158BH provides for application of the other
    provisions of the Act. It reads: “Save as otherwise
    provided in this Chapter, all the other provisions of this
    Act 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 proceedings for block assessment. The
    provisions which are specifically included are those
    which are available in Chapter XIV-B of the Act,
    which includes Section 142 and Sub-Sections (2) and
    (3) of Section 143.”

    40. The Hon’ble Supreme Court also observed that after a Return is

    filed, it enables an Assessing Officer to complete the assessment by following

    the procedure like issue of Notice under Sections 143(2)/142 and complete

    the assessment under Section 143(3) of the Act.

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    41. Having considered the decision of the Hon’ble Supreme Court in

    Hotel Blue Moon’s case referred to supra, which has been applied by this

    Court in the context of Section 158BC of the Act in Chapter XIV-B as it

    stood then and the decision of the Division Bench of this Court in Sapthagiri

    Finance & Investments referred to supra, I shall now refer to a decision of

    the Division Bench of the Allahabad High Court cited by the learned counsel

    for the Petitioner in the case of Commissioner of Income-tax-II, Lucknow

    Vs. Salarpur Cold Storage Private Limited, [2014] 50 taxmann.com 105

    (Allahabad).

    42. There, the Division Bench of the Allahabad High Court following

    the view of the Hon’ble Supreme Court in Hotel Blue Moon’s case referred

    to supra observed that the omission on the part of the Assessing Officer to

    issue a Notice under Section 143(2) of the Act is not a procedural irregularity

    and is not curable.

    43. The requirement of a Notice under Section 143(2) of the Act cannot

    be dispensed with. The Division Bench of the Allahabad High Court also

    observed that where the Assessing Officer fails to issue a Notice within the

    period of six months as spelt out in the Proviso to Clause (ii) of Section

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    143(2) of the Act, the assumption of jurisdiction under Section 143(3) of the

    Act would be invalid and that this defect in regard to the assumption of

    jurisdiction cannot be cured by taking recourse to the deeming fiction under

    Section 292BB of the Act.

    44. Section 292BB of the Act reads as under:-

    “292BB. Notice deemed to be valid in certain
    circumstances:-

    Where an assessee has appeared in any proceeding or
    co-operated in any inquiry relating to an assessment or
    reassessment, it shall be deemed that any notice under
    any provision of this Act, which is required to be served
    upon him, has been duly served upon him in time in
    accordance with the provisions of this Act and such
    assessee shall be precluded from taking any objection in
    any proceeding or inquiry under this Act that the notice
    was-

    a. not served upon him; or
    b. not served upon him in time; or
    c. served upon him in an improper manner:

    Provided that nothing contained in this Section shall
    apply where the assessee has raised such objection
    before the completion of such assessement or
    reassessment.”

    45. The above decision of the Division Bench of the Allahabad High

    Court records that a Notice under Section 143(2) of the Act was issued on

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    06.10.2009 and thereafter the assessment was completed on 24.12.2010 under

    Section 143(3) of the Act.

    46. Therefore, the Commissioner of Income Tax (Appeals) had held

    that the Notice dated 06.10.2009 issued under Section 143(2) of the Act was

    not issued within the period stipulated under Section 143(3) of the Act and

    hence the question of its service either within or beyond the time prescribed

    or its improper service within the meaning of Section 292BB of the Act

    would not arise.

    47. The view of the Commissioner of Income Tax Appeals was

    confirmed by the Tribunal. The Tribunal held that a Notice under Section

    143(2) of the Act is of a statutory nature through which the Assessing Officer

    assumes jurisdiction over the assessee to frame an assessment under Section

    143(3) of the Act. If the jurisdiction was not properly assumed by the

    Assessing Officer by issuing a valid Notice under Section 143(2) of the Act,

    the assessment so framed would be without a valid assumption of jurisdiction

    and would be invalid.

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    48. Keeping the above decisions of the Hon’ble Supreme Court and

    other High Courts and the decision cited by the learned Junior Standing

    Counsel for the Respondent in Areva T & D India Limited case referred to

    supra and the other decisions cited, I shall proceed to refer to both Section

    148 of the Act and Section 143(2) of the Act.

    49. Section 143(2) of the Act as it stood during the period in dispute

    and Section 148 of the Act as it stood prior to its substitution before

    01.04.2021 does not in any manner further the case of Petitioner.

    50. Under Section 148(1) of the Act, a Return filed pursuant to a

    Notice under Section 148 of the Act is to be treated as a Return required to be

    furnished under Section 139 of the Act. However, the assessment has to be

    completed within the limitation prescribed under Section 153(2) of the Act

    i.e., within the period of nine months from the end of the Financial Year in

    which Section 148 Notice was issued.

    51. In the facts of the present case, there is no dispute that the

    Petitioner had earlier filed a Return of Income under Section 139(1) of the

    Act on 31.07.2011, declaring income of only Rs.8,30,977/- when indeed the

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    Petitioner had received a sum of Rs.42,65,000/- towards “non-compete fee”

    and a sum of Rs.2,00,00,000/- on 04.11.2010, directly from M/s.Edserve Soft

    Systems Limited after the assets of M/s.Smartlearn Edutech Private Limited

    was transferred to former.

    52. The amount that was payable for the sale of assets of M/s.Smartlearn

    Edutech Private Limited to M/s.Edserve Soft Systems Limited was strangely

    retransferred to M/s.Edserve Soft Systems Limited itself on 04.11.2010 and

    on the same day, M/s.Smartlearn Edutech Private Limited was allotted 93458

    shares of Rs.214/- per share in M/s.Edserve Soft Systems Limited.

    53. These were not declared in the aforesaid Return of Income that was

    filed on 31.07.2011. The Petitioner merely declared the total income of the

    Petitioner as Rs.8,30,977/-. The Return was processed under Section 143(1)

    of the Act on 15.10.2011.

    54. It is in this background, the Petitioner was issued a Notice under

    Section 272A of the Act on 21.08.2012 in response to which the Petitioner

    had replied on 28.08.2012, 29.08.2012 and 05.10.2012 and thereafter filed a

    revised Return of Income under Section 139(4) of the Act on 11.09.2012.

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    55. Thus, the Petitioner declared a taxable income of Rs.17,29,621/-

    and paid tax of Rs.4,34,512/-. It is in this background, a Notice was also

    issued under Section 148 of the Act on 29.03.2018 which is impugned in

    W.P.No.2495 of 2019.

    56. As mentioned above, once a Notice is issued under Section 148 of

    the Act, the Assessing Officer has to pass a Reassessment Order under

    Section 153(2) of the Act within a period of nine months from the end of the

    Financial Year in which a Notice under Section 148 of the Act was served.

    57. For the sake of clarity, Section 153(2) of the Act is reproduced

    below:-

    “153. Time limit for completion of assessment,
    reassessment and recomputation:

    (1) ……
    (2) No order of assessment, reassessment or
    recomputation shall be made under Section 147 after the
    expiry of nine months from the end of the financial year in
    which the notice under Section 148 was served.

    Provided that where the notice under Section 148 is served on
    or after the 1st day of April, 2019, the provisions of this Sub-
    Section shall have effect, as if for the words “nine months”,
    the words “twelve months” had been substituted.”

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    58. In this case, pursuant to the Notice issued under Section 148 of the

    Act dated 29.03.2018, the Petitioner had submitted Letters dated 27.04.2018

    and 22.05.2018. In the Letter dated 27.04.2018, the Petitioner had requested

    the Respondent to consider his earlier Revised Return filed on 11.09.2012 as

    a Return to be filed in response to the Notice under Section 148 of the Act.

    However, in his Letter dated 22.05.2018, the Petitioner requested the

    Respondent to consider his Return dated 22.05.2018 as a Return filed in

    response to the Notice under Section 148 of the Act.

    59. Section 143 of the Act applies to Return filed under Section 139 or

    a Return filed in response to a Notice under Section 142(1) of the Act. A

    Return filed pursuant to Section 148 Notice is deemed to be a Return filed

    under Section 139 of the Act.

    60. The scope for issuance of Section 143(2) Notice will arise only

    where the Assessing Officer considers it “necessary” or “expedient” as is

    evident from a reading of Section Section 143(2) of the Act.

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    61. For the sake of clarity, Section 143(2) of the Act is reproduced

    below:-

    “143. Assessment:

    (1) …..

    (2) Where a return has been furnished under section 139,
    or in response to a notice under sub-section (1) of section
    142
    , the Assessing Officer or the prescribed income-tax
    authority, as the case may be, if, considers it necessary or
    expedient to ensure that the assessee has not understated
    the income or has not computed excessive loss or has
    not under-paid the tax in any manner, shall serve on the
    assessee a notice requiring him, on a date to be specified
    therein, either to attend the office of the Assessing Officer
    or to produce, or cause to be produced before the
    Assessing Officer any evidence on which the assessee may
    rely in support of the return.

    Provided that no notice under this sub-section shall be
    served on the assessee after the expiry of six months from
    the end of the financial year in which the return is
    furnished.”

    62. Under Section 143(2) of the Act, if the Assessing Officer or the

    prescribed Income Tax Authority, as the case may be, considers it

    “necessary” or “expedient” that in the Return furnished under Section 139 of

    the Act or in response to a Notice under Sub-Section (1) of Section 142 of the

    Act, the assessee has

    (a) understated the income; or

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    (b) computed excessive loss; or

    (c) underpaid the tax in any manner,
    shall serve on the assessee,

    i. a notice requiring him, on a date to be specified
    therein, either to attend the office of the Assessing
    Officer; or
    ii. to produce, or cause to be produced before the
    Assessing Officer any evidence on which the assessee
    may rely in support of the return.

    63. As per the Proviso to Section 143(2) of the Act, such a Notice

    should be issued within six months from the end of the Financial Year in

    which such Return was furnished.

    64. It is only under those situations, the Assessing Officer or the Income

    Tax Authority shall serve on the assessee a Notice requiring him, on a date to

    be specified therein, either to attend the office of the Assessing Officer or to

    produce, or cause to be produced before the Assessing Officer any evidence

    on which the assessee may rely in support of the Return. Thus, Notice under

    Section 143(2) of the Act is discretionary and not mandatory to ensure that

    there is no violation of Principles of Natural Justice.

    65. As per the Letters dated 27.04.2018 and 22.05.2018 and going by

    the Petitioner’s own submissions, the Notice under Section 143(2) of the Act

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    ought to have been issued either before 30.09.2013 [i.e., six months from the

    end of the Financial Year in which such revised Return of Income was filed

    on 11.09.2012] or latest by 30.09.2019 [i.e., six months from the end of the

    Financial Year of Letter dated 22.05.2018]. However, as mentioned above,

    under Section 153(2) of the Act, an Order of Assessment, Reassessment or

    Recomputation under Section 147 of the Act has to be passed within nine

    months from the end of the Financial Year in which the Notice under Section

    148 of the Act was served i.e., on or before 31.12.2018.

    66. If the Returns under Section 148(1) of the Act is said to have been

    filed on 22.05.2018 based on the said Letter, it is to be treated as if it were a

    Returns required to be furnished by the Petitioner under Section 139 of the

    Act, a Section 143(2) Notice ought to have been issued latest by 30.09.2019

    i.e., after the due date for passing the Assessment Order on 31.12.2018 in

    terms of the limitation under Section 153(2) of the Act. This is evident from

    a reading of Section 148 of the Act as it stood during the period in dispute.

    67. Thus, an anomalous situation arises, as in the present case, after a

    Section 148 Notice of the Act was issued, the Department could not have

    issued a Notice under Section 143(2) of the Act either after the date of the

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    Revised Return was filed on 11.09.2012, or before the expiry of limitation for

    passing Orders under Section 147 read with Section 153(2) of the Act i.e.,

    31.12.2018 when the date of Revised Return i.e., Letter dated 22.05.2018 is

    taken as a Return, the period for issuance of Notice under Section 143(2) of

    the Act would have long surpassed the last date.

    68. The reassessment proceedings under Section 148 read with Section

    147 of the Act are intended to protect the Revenue and therefore the

    interpretation which would further the case of the Revenue has to be

    accepted. In this case, I am fortified by the view of the Hon’ble Supreme

    Court in Commissioner of Income Tax Vs. Sun Engineering Works (P)

    Ltd., (1992) 4 SCC 363, wherein it was held as under:-

    “40. Although, Section 147 is part of a taxing
    statute, it imposes no charge on the subject but deals
    merely with the machinery of assessement and in
    interpreting a provision of that kind, the rule is that
    construction should be preferred which makes the
    machinery workable. Since the proceedings under Section
    147
    of the Act are for the benefit of the Revenue and not
    an assessee and are aimed at gathering the ‘escaped
    income’ of an assessee, the same cannot be allowed to be
    converted as ‘revisional’ or ‘review’ proceedings at the
    instance of the assessee, thereby making the machinery
    unworkable.”

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    69. Therefore, the decision of the Division Bench of this Court in

    Sapthagiri Finance case referred to supra was not laid before the Hon’ble

    Supreme Court in Hotel Blue Moon’s case referred to supra. The provision

    of Section 143(2) of the Act and Section 148 of the Act as it stood prior to its

    substitution with effect from 01.04.2021 do not warrant issuance of Notice

    pursuant to Section 148 of the Act.

    70. The other decision of the Allahabad High Court and that of the

    Delhi High Court following the decision of the Hon’ble Supreme Court in

    Hotel Blue Moon’s case referred to supra cannot be applied stricto sensu.

    71. That apart, the Petitioner has participated in the proceedings and

    therefore it is not open for the Petitioner to challenge the Assessment Order

    on the ground of jurisdiction in view of Section 292BB of the Act.

    72. In the present case, Section 148 Notice was issued on 29.03.2018.

    The last date for the Financial Year would end on 31.03.2018, and the last

    date for passing Order under Section 147 read with Section 153 of the Act

    would be on 31.12.2018. Thus, a Notice under Section 143(2) of the Act, is

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    an impossibility as the time for passing an Assessment Order would expire on

    31.12.2018.

    73. Thus, it has to be held that the procedure prescribed under Section

    143(2) of the Act is not mandatory and it has to be issued only where the

    Assessing Authority or the Assessing Officer as the case may be considers it

    “necessary” or “expedient” to ensure that the assessee has not understated

    the income or has not computed excessive loss or has not underpaid tax in

    any manner. That apart, the Petitioner has not filed a Revised Return as is

    contemplated under Section 148 of the Act rather the Petitioner has merely

    reiterated the Revised Return that was filed on 11.09.2012.

    74. The argument of the Petitioner that the reasons for reopening the

    assessment was different from the ultimate finding in the Impugned

    Assessment Order also cannot be countenanced.

    75. Although pursuant to the issuance of Section 148 Notice, the

    Petitioner was asked to furnish the details of “non-compete fee” during the

    course of reassessment. It is noticed that the Petitioner claimed excessive

    loss to the tune of Rs.27,97,576/- against the said income. There is a direct

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    nexus between the reasons for reopening and the disallowance made in the

    Order passed under Section 147 of the Act. Thereafter, the Petitioner has not

    filed new Return after Section 148 Notice dated 29.03.2018 was issued.

    Therefore, there is no justification for interfering with the Impugned

    Assessment Order.

    76. In any event, the said issue is pending before the Hon’ble Supreme

    Court in Director of Income Tax (IT)-II Vs. Black & Veatch Prichard,

    Inc., in Civil Appeal No.9105 of 2017 in SLP (C) No.7658 of 2012, in view

    of the divergent views taken by different High Courts while interpreting

    Explanation 3 to Section 147 of the Act which read as under:-

    “Explanation 3 – For the purpose of assessment or
    reassessment under this Section, the Assessing Officer may
    assess or reassess the income in respect of any issue, which has
    escaped assessment, and such issue comes to his notice
    subsequently in the course of the proceedings under this
    Section, notwithstanding that the reasons for such issue have
    not been included in the reasons recorded under sub-section (2)
    of section 148.”

    77. Whether there were justifiable reasons for claiming a business loan

    written off of Rs.27,97,576/-, while filing the Revised Return under Section

    139(4) of the Act on 11.09.2012, which was reiterated in the letter filed on

    22.05.2018 in response to the impugned Section 148 Notice dated 27.04.2018

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    was to be justified or not was to be decided by the Assessing Officer on

    merits. Therefore, I do not wish to make any further observation on the same

    as it touches on the merits of the case.

    78. That apart, once a Return has been filed, the deduction claimed by

    the Petitioner is a subject matter of a scrutiny and that in this case the

    Petitioner has not furnished any documents to substantiate the same.

    79. That apart, as stated earlier, there is also no merit in the challenge

    to the proceedings on the ground of jurisdiction in view of Section 292BB of

    the Act. As such, there are also no procedural irregularity in passing the

    Impuged Assessment Order warranting its interference under Article 226 of

    the Constitution of India.

    80. Therefore, both W.P.No.2495 of 2019 as also W.P.No.2485 of

    2019 are liable to be dismissed.

    81. In the result,

    (1) W.P.No.2495 of 2019, challenging the Impugned Section 148

    Notice dated 29.03.2018 is dismissed.

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    (2) W.P.No.2485 of 2019, challenging the Impugned

    Assessment Order dated 26.12.2018 is disposed by giving liberty

    to the Petitioner to file an appeal within a period of four weeks

    from the date of receipt of a copy of this order and the same may

    be entertained without reference to the aspect of limitation.

    (3) No costs. Connected Writ Miscellaneous Petitions are closed.

    07.07.2026

    Neutral Citation: Yes / No

    arb

    To:

    The Deputy Commissioner of Income Tax,
    Corporate Circle 1(1),
    Chennai – 34.

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    C.SARAVANAN, J.

    arb

    Pre-Delivery Common Order in W.P.Nos.2485 and 2495 of 2019

    07.07.2026

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