N.S. SAINI, A.M. ORDER Hon ble President, Tribunal vide order dt. 11 th Sept., 2006 has constituted this Special Bench for deciding following questions : "(i) Whether defect in notice under s. 1 58BC which gave less than 1 5 days to assessee to file return affects validity of assessment so that it should be annulled or quashed or whether it is mere procedural irregularity which can be cured, with result that assessment may only be set aside to be reframed after curing defect ? (ii) Entire appeal including above referred to question." 2 . Since grounds of appeal raised in both appeals are common, facts involved are similar and as they were heard together hence, they are being disposed of by this consolidated order for sake of convenience. 3. brief facts of case are that AO vide order dt. 30th April, 200 1 passed under s. 1 58BC(c)/ 1 43(3) determined income at Rs. 36,22,300 and Rs. 1 ,50,86, 1in hands of Smt. Krishna Verma and Shri Subash Verma respectively. 4. Before learned CIT(A) assessee submitted that mandatory time of 1 5 days had not been allowed from date of issue of notice dt. 1 2th Oct., 1 999. Therefore, initiation of proceedings under s. 1 58BC of Act on basis of alleged notice dt. 1 2th Oct., 1 999 is not valid being illegal and bad in law because of non-compliance with mandatory requirements of provisions of s. 1 58BC(a)(i) and s. 1 58BC(a)(ii) of Act. 5 . AO present during course of hearing before CIT(A) submitted that notice under s. 1 58BC calling for return within 1days would not invalidate entire block assessment proceedings and it was in these circumstances that s. 292B of IT Act, deserves to be invoked. It was stated that it was only omission which would not go to root of jurisdiction so as to invalidate assessment order passed. It has also been stated that what also needs to be taken careful note of is fact that assessee took more than 3- 1 /2 months for filing return. 6 . learned CIT(A) after considering rival submissions held that there was no fundamental irregularity committed by AO by calling for return within 1days. Moreover, such omission or irregularity is minor and deserves to be ignored. Therefore, plea of assessee is rejected. Being aggrieved by this order, assessee is in appeal before Tribunal. 7 . learned counsel for assessee Shri Ajay Vohra, Advocate, submitted that pursuant to search, AO or person in whose case search was carried out under s. 1 32 assumes jurisdiction to assess such person, invoke provisions of Chapter XIV-B and deal with matter under that Chapter. Jurisdiction to make order of assessment under s. 1 58BC of Act is assumed only on issuance and service of proper and valid notice under that section. 8. Sec. 1 58BC of Act, reads as under : " 1 58BC. Procedure for block assessment Where any search has been concluded under s. 1 32 or books of account, other documents or assets are requisitioned under s. 1 32A, in case of any person, then, : (a) AO shall (i) in respect of search initiated or books of account or other documents or any assets requisitioned after 30th day of June, 1 995, but before 1 st day of January, 1 997, serve 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 1 st day of January, 1 997, serve 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 notice return in prescribed form and verified in same manner as return under cl. (i) of sub-s. ( 1 ) of s. 1 42, setting forth his total income including undisclosed income for block period : Provided that no notice under s. 1 48 is required to be issued for purposes of proceeding under this Chapter : Provided further that person who has furnished return under this clause shall not be entitled to file revised return; (b) AO shall proceed to determine undisclosed income of block period in manner laid down in s 1 58BB and provisions of s. 1 42, sub-ss. (2) and (3) of s. 1 43, s. 1 44 and s. 1 45 shall, so far as may be, apply; (c) AO, on determination of undisclosed income of block period i n accordance with this Chapter, shall pass order of assessment and determine tax payable by him on basis of such assessment; (d) assets seized under s. 1 32 or requisitioned under s. 1 32A shall be dealt with in accordance with provisions of s. 1 32B." 9. He pointed out that cl. (a) of s. 1 58BC of Act, mandates that where, inter alia, search is conducted AO shall serve notice to such person requiring him to furnish return for block period within prescribed time. Since jurisdiction to make assessment under Chapter XIV-B of Act is assumed on basis of issue and service of proper and valid notice issued under cl. (a) of s. 1 58BC of Act, requirement of that clause that notice must allow not less than 1 5 days time for furnishing return for block period is mandatory requirement, non-compliance whereof would vitiate entire block assessment and would consequently be nullity in eyes of law. 1 . He submitted that jurisdiction to invoke provisions of Chapter XIV-B and deal with matter under that Chapter is assumed on basis of valid search, but, jurisdiction to make order of assessment under s. 1 58BC of Act is assumed only on issuance and service of proper and valid notice under that section. Similar distinction was noted by Supreme Court in case of R.K. Upadhyaya vs. Shanabhai P. Patel ( 1 987) 62 CTR (SC) 1 7 : ( 1 987) 1 66 ITR 1 63 (SC). In that case Supreme Court held that once notice under s. 1 ITR 1 63 (SC). In that case Supreme Court held that once notice under s. 1 48 of Act is issued jurisdiction is vested in officer but service of notice is condition precedent to making of order of assessment. relevant observations of Court reads as under : "... Sec. 1 48( 1 ) provides for service of notice as condition precedent to making order of assessment. Once notice is issued within period of limitation jurisdiction becomes vested in ITO to proceed to reassess. mandate of s. 1 48( 1 ) is that reassessment shall not be made until there has been service. requirement of issue of notice is satisfied when notice is actually issued. In this case, admittedly, notice was issued within prescribed period of limitation as 3 1 st March, 1 970, was last day of that period. Service under new Act is not condition precedent to conferment of jurisdiction on ITO to deal with matter but it is condition precedent to making of order of assessment. . . ." 11 . Elaborating above, he submitted that once AO issues notice under s. 1 48 of Act, within limitation period and after properly recording reasons and satisfying other conditions, jurisdiction to proceed to reassess is vested in him. However, jurisdiction to make order of assessment is assumed only on service of such valid and proper notice. If for any reason there is failure to serve proper and valid notice, AO cannot be said to have assumed jurisdiction to make order of assessment and consequently reassessment order passed would be nullity in eyes of law. 1 2 . He further submitted that Special Bench in case of Smt. Mahesh Kumari Batra vs. Jt. CIT (2005) 95 TTJ (Asr)(TM) 46 1 : (2005) 95 ITD 1 52 (Asr)(TM) noticed distinction between jurisdiction to assess and jurisdiction to make order of assessment by observing that "by virtue of s. 1 58BA( 1 ), AO obtains power connection. Under s. 1 58BC, he switches on that power by issue of notice...". According to Special Bench, jurisdiction to assess is conferred on AO as result of search. jurisdiction to make order of assessment is "switched on" by issue of notice under s. 1 58BC of Act. 1 3 . It was his submission that aforesaid distinction was also appreciated and recognized in decision of Special Bench of Tribunal in case of Motorola Inc. vs. Dy. CIT (2005) 96 TTJ (Del)(SB) 1 : (2005) 95 ITD 269 (Del)(SB). In para 38. 1 (p. 334) (reproduced infra) Tribunal observed that "the power for initiation of proceedings as per scheme of Act is very different from power of making assessment". In that case, Special Bench annulled assessment completed on basis of notice issued under s. 1 42( 1 ) of Act after expiry of assessment year. 1 4. He also submitted that Delhi Bench of Tribunal in case of Dr. K.C. Verma vs. Asstt. CIT (2004) 89 TTJ (Del) 1 29 : (2003) 84 ITD 33 (Del) held that jurisdiction to assess can be assumed only within four corners of provision of s. 1 43. In this case, assessment was made under s. 1 44 on basis of returns filed in response to notices under s. 1 48. Tribunal held that jurisdiction to assess income under s. 1 43(3) can be assumed only on issue of notice under s. 1 43(2) of Act, within twelve months. It was further held that since no notice under s. 1 43(2) was issued within twelve months, notice issued under s. 1 42( 1 ) after expiry of period mentioned in sub-s. (2) of s. 1 43, shall not be valid notice and therefore, assessments made under s. 1 44 shall not be valid. relevant observations of Tribunal read as under : ". . . Before coming to merits of contentions of assessee s counsel, it may be mentioned that s. 1 48 specifically provides that provisions of Act shall, as far as may be, apply, as if returns under s. 1 48 were returns under s. 1 39. Therefore, procedural provisions of ss. 1 42 and 1 43 would also apply to such return. Coming to merits of assessee s contention, it is seen that marginal note to s. 1 42 states enquiry before assessment . Sub-s. ( 1 ) starts with expression for purpose of making assessment under this Act . That means that enquiry notice under s. 1 42( 1 ) can be issued only if AO either has validly assumed jurisdiction to make assessment or can validly assume jurisdiction to assess after making enquiry under s. 1 42( 1 ). Therefore, it may be impliedly inferred that if power to assess is lost by expiry of limitation period, notice under s. 1 42( 1 ) cannot be issued. jurisdiction to assess can be assumed only within four corners of provisions of s. 1 43. provisions of sub-s. (2) of this section clearly provides that notice for making assessment can be issued only within period of 1 2 months from for making assessment can be issued only within period of 1 2 months from end of month in which return is processed. That means after expiry of such period, AO has no jurisdiction to make assessment under s. 1 43(2) or (3) and only course open to AO is to accept return under s. 1 43( 1 ). Therefore, in my considered opinion, after expiry of period mentioned in sub-s. (2) of s. 1 43, no notice under s. 1 42( 1 ) can be issued because of lack of power to assess." 1 5 . It was submitted by him that Revenue s appeal against aforesaid order of Tribunal has been dismissed by jurisdictional Delhi High Court in CIT vs. Dr. K.C. Verma (2003) 1 85 CTR (Del) 23 1 : (2004) 266 ITR 476 (Del). 1 6. He further argued that it is now pertinent to consider mandate of s. 1 58BC of Act. Under s. 1 58BC(a) of Act, AO is directed that he, "shall...... serve notice to such person requiring him to furnish within such time not being less than fifteen days but not more than forty-five days." 1 7 . first limb of cl. (a) of s. 1 58BC of Act, provides that "AO shall .... serve notice ...". plain language of cl. (a) using expression shall thus makes it abundantly clear that requirement of serving prescribed notice is mandatory provision and such requirement cannot merely be held to be directory. 1 8. In following cases, Courts have consistently held that use of word "shall" raises prima facie presumption that particular provision is ordinarily mandatory : (i) Hemalatha Gargya vs. CIT (2003) 1 82 CTR (SC) 107 : (2003) 259 ITR 1 (SC) (ii) AIR 1 957 SC 9 1 2 at 9 1 7 (iii) AIR 1 96 1 SC 75 1 at 765 (iv) AIR 1 96 1 SC 1 480 at 1 455 (v) AIR 1 976 SC 263 at 267 1 9 . He, however, fairly admitted that it has been held by Courts that though use of word "shall" only indicates prima facie that provision is mandatory such inference may be rebutted by other considerations, such as object and scope of enactment and consequences flowing from such construction. 20. He also submitted that at this stage, it is also pertinent to mention that Revenue has not disputed aforesaid proposition that expression shall in context of above provisions means that issue and service of notice under s. 1 58BC(a) is mandatory. contention of appellant that jurisdiction to make order of assessment under s. 1 58BC is assumed only on issuance and service of proper notice under that section is supported by following judicial precedents : (i) Delhi Bench of Tribunal in case of N.K. Parwanda vs. Dy. CIT ITA No. 1 29/Del/2003 (pp. 1 3- 1 9 of paper book) [reported at (2004) 89 TTJ (Del) 95 Ed.] held that service of notice under s. 1 58BC is condition precedent for proceeding to assess undisclosed income. Therefore, it affects jurisdiction of AO. Consequently, if assessment is made without serving such notice then such assessment would be without jurisdiction and null and void. (ii) Delhi High Court in ITA No. 4 11 of 2004 has dismissed appeal filed by Revenue (refer pp. 20-2 1 of paper book). decision of Tribunal having merged with decision of High Court [refer Nirma Industries Ltd. vs. Dy. CIT (2006) 202 CTR (Guj) 1 98 : (2006) 283 ITR 402 (Guj)], decision of jurisdictional High Court is binding on this Hon ble Bench. (iii) Rajasthan High Court in case of Tinwari Automobiles vs. Union of India (2002) 1 25 Taxman 11 4 (Raj) (refer pp. 1 - 1 2 of paper book) held that service of notice under s. 1 58BC of Act, which can be termed as statutory notice, is condition precedent for making order under provisions of Act. (iv) Jabalpur Bench of Tribunal in case of Sanjay Kumar Mishra vs. Asstt. CIT (2006) 1TTJ (Jab) 862 (refer pp. 44-52 at 52 of paper book) held that it is mandatory on AO to serve notice under s. 1 58BC of Act. 2 1 . It was his argument that mandate of s. 1 58BC(a) of Act is not only to issue and serve notice under that section but to issue valid and proper notice, which must necessarily prescribe minimum statutory period of 1 5 complete days for furnishing return to assessee. 22. It was further submitted that now issue that arises is whether it would be sufficient if notice under s. 1 58BC(a) is issued even though statutory period of 1 5 clear days is not provided therein. Supreme Court in Lachmi Narain vs. Union of India 1 976 CTR (SC) 1 : AIR. 1 976 SC 7 1 4 has observed that requirement of notice prescribing minimum statutory period is part of scheme and cannot be held to be non-essential. In that case issue before Court was effect of issuance of notification issued without giving not less than 3 months notice . Court observed as under (refer paras 67-68 on pp. 726-727 pp. 1 -9 of paper book) : "67. In fixing this period of notice in mandatory terms, legislature had, it seems taken into consideration several factors. According to scheme of Bengal Act, tax is quantified and assessed on quarterly turnover. period of not less than three months notice conforms to that scheme and is intended to ensure that imposition of new burden or exemption from tax causes least dislocation and inconvenience to dealer in collecting tax for Government, keeping accounts and filing proper return, and to Revenue in assessing and collecting same. Another object of this provision is that public at large and purchasers, on whom incidence of tax really falls, should have adequate notice of taxable items. third object seems to be that dealers and others likely to be affected by amendment of Second Schedule may get sufficient time and opportunity for making representations, objections or suggestions in respect of intended amendment. dealers have also been ensured adequate time to arrange their sales, adjust their affairs and to get themselves registered or get their licenses amended and bring in accord with new imposition or exemption. 68. Taking into consideration all these matters, legislature has, in its judgment solemnly incorporated in statute, fixed period of requisite notice as not less than three months and willed this obligation to be absolute. span of notice was thus essence of legislative mandate. necessity of notice and span of notice both are integral to scheme of provision. sub-section cannot therefore be split up into essential and non- essential components, whole of it being mandatory. rule in Raza Buland Sugar Co. s case (AIR 1 965 SC 895) (supra) has therefore no application." 23. It was his submission that sanctity of notice issued under s. 1 58BC(a) of Act, similarly lies in fact that it must allow not less than 1 5 days time to assessee to furnish return of income. notice not allowing such mandatory period has no legal sanctity in eye of law. He submitted that reference, in this regard, may be made to following decisions referred in context of similar provisions requiring notice issued to prescribe specified complete days for furnishing return of income. Courts have consistently held that if notice does not allow such prescribed time, notice issued is illegal and bad in law : (i) Mir Iqbal Husain vs. State of UP ( 1 964) 52 ITR 625 (All) : Their Lordships observed as under : "We are unable to accept contention advanced on behalf of State. notice under s. 25 must contain requirements which may be included in notice under s. 1 5(3). notice under s. 1 5(3) requires assessee to furnish return. requisition does not stop there. It proceeds further, and, indeed, must proceed further. It requires assessee to furnish return within certain period. It appears to us that unless period for furnishing return is specified in notice, it is incomplete notice. very object of Act, which is fiscal statute, indicates that assessment should be completed within definite period and, therefore, it is necessary that assessee should be required to file return within specified period. assessee who fails without reasonable cause or excuse to furnish return in due time is liable to penalty under s. 37. enactment of s. 37 testifies to intention of legislature that return is required to be filed within definite period, and accordingly duty is cast upon assessing authority to specify such period in notice calling for return. notice must not merely require assessee to furnish return. It must require assessee to furnish return within specified period, that period being not less than thirty days. It is only then notice containing requirements of s. 1 5(3)." (ii) O. Thomas Children s Benefit Trust vs. Agrl. ITO ( 1 998) 234 ITR 1 43 (Ker) : Notice issued under s. 1 7(2) of Kerala Agrl. IT Act, 1 950 was held to be invalid since it granted 5/7 days whereas provisions required statutory period of 30 complete days. Court held that such requirement cannot be dispensed with or abrogated or obliterated by pleading that after issue of notice sufficient time had been given to assessee. (iii) Tansukhrai Bodulal vs. ITO ( 1 962) 46 ITR 325 (Assam)(FB) : Notice issued under s. 34 of IT Act, 1 922 was held to be invalid and no notice in eye of law since it did not allow statutory period of 30 complete days. argument of Revenue that sufficient time had been given to assessee and therefore notice issued was proper was rejected by Court. 24. He argued that it is pertinent to mention here that s. 1 48 of Act, prior to amendment in 1 996 retrospectively from 1 st April, 1 989, also required that notice issued under that section must prescribe 30 days clear time for filing return of income. notices issued under that section prescribing less than 30 days were held to be nullity in eye of law and consequent assessment framed on basis of such notice is illegal and bad in law [Also refer CIT vs. Ramsukh Motilal ( 1 955) 27 ITR 54 (Bom), Commr. of Agrl. IT vs. Amalgamated Coffee Estates Ltd. ( 1 962) 45 ITR 348 (Ker), Commr. of Agrl. IT vs. Ramkuvar ( 1 983) 1 4 1 ITR 85 (Bom)]. Courts have, thus, consistently held that if any notice is issued not prescribing/allowing statutory period prescribed in relevant statute such notice is invalid in eye of law. 25. It was further submitted that scheme of Act, clearly requires that there must be strict compliance of aforesaid requirements of s. 1 58BC of Act as serious consequences follow from its non-compliance, as explained hereunder : (a) Sec. 1 58BFA grants immunity from imposition of penalty if any person furnishes return under cl. (a) of s. 1 58BC of Act disclosing any undisclosed income . When person is not served with notice under s. 1 58BC(a), such person is denied legal right to furnish return of his undisclosed income and in such case, such person is altogether deprived of his right to claim immunity from penalty under s. 1 58BFA of Act; (b) In case where notice is issued and served on assessee, but such notice does not prescribe statutory period of 1 5 complete days for furnishing return, such notice has, as discussed supra, no legal sanctity in eye of law. Further, by said notice assessee is forced to furnish return within short time prescribed in notice. Since assessee is, in process, not granted sufficient time to prepare and furnish its return, assessee is denied proper opportunity to compute its undisclosed income , thereby exposing him to imposition of penalty under s. 1 58BFA of Act. It is important to note that return once filed under s. 1 58BC(a) of Act cannot be revised (refer second proviso thereto). Therefore, in case where assessee has not been granted sufficient time to furnish return as prescribed under law, such assessee is forced to file his return within time prescribed and such person will thereafter, have no recourse of filing revised return. (c) Under sub-s. ( 1 ) of s. 1 58BFA interest is levied for non-filing of return or for filing return within time specified in notice issued under s. 1 58BC(a) of Act. Such interest is imposed for period commencing from day immediately following expiry of time specified in notice. Such interest is mandatory and cannot be reduced or varied by any authority. Issuing invalid notice under s. 1 58BC(a) of Act prescribing less than statutory period results in imposition of interest for larger period causing prejudice to assessee. aforesaid, thus, leads to inescapable conclusion that notice issued under s. 1 58BC(a) of Act, must provide minimum statutory period of 1 5 days for filing return. (d) In case of person other than person who is subjected to search, proceedings are initiated under s. 1 58BD of Act. Jurisdiction in case of such other person is clearly assumed by satisfying prerequisites of s. 1 58BD (including but not limiting to satisfaction of AO of searched person and transfer of relevant material) and also serving upon assessee notice under s. 1 58BC of Act. In case of such other person, notice issued under s. 1 58BC is again jurisdictional notice since there is no search in case of said other person and therefore, invalid notice will vitiate entire assessment. 26. He concluded that in view of aforesaid, inescapable conclusion that one arrives at is that provisions of s. 1 58BC(a) are mandatory conferring jurisdiction to make order of assessment under that section and, therefore, issue and service of invalid notice will vitiate block assessment and result in order being declared as nullity. 2 7 . Shri Ved Jain, chartered accountant, intervener submitted that question before Bench is regarding Chapter XIV-B which is special procedure for assessment of search cases. As per provision of s. 1 58BC where search has been conducted under s. 1 32, AO is required to serve notice to person in whose case search has been conducted asking him to furnish within such time, not being less than 1 5 days, return of his total income including undisclosed income for block period. This is requirement for making assessment in respect of person in whose case search has been conducted. However, in case of person in whose case search has not been conducted and AO is satisfied that any undisclosed income belongs to such person other than person with respect to whom search was made under s. 1 32, then such AO is required to hand over books of account and other documents to AO having jurisdiction over such other person and then such other AO has to proceed under s. 1 58BC against such other person. Thus, proceeding in respect of person who has been searched as well as person in whose respect search has not been conducted, both have to be under s. 1 58BC whereby AO shall serve notice requiring furnishing of return within such time not being less than 1 5 days. Thus question before this Special Bench is to be examined in context of notice issued in case of person who has been searched. It is important issue which needs to be examined because in case jurisdiction of person who has been searched comes to AO moment search is conducted, then by implication AO shall also get jurisdiction in respect of person other than person who has been searched. 28. He submitted that to decide above issue it is important to make distinction between s. 1 58BA and s. 1 58BC. crucial point for determination will be whether s. 1 58BA itself gives jurisdiction to AO so that requirement of s. 1 58BC is only procedural or, in alternative, s. 1 58BA makes only classification and jurisdiction is assumed by AO under s. 1 58BC. For this, one is required to read not only main heading but also sub-headings given under Chapter XIV-B. main heading of Chapter XIV-B is special procedure for assessment of search cases, followed by sub-headings as under : (i) Definitions Sec. 1 58B (ii) Assessment of undisclosed income as result of search 1 58BA (iii) Computation of undisclosed income of block period 1 58BB (iv) Procedure for block assessment 1 58BC (v) Undisclosed income of any other person 1 58BD (vi) Time-limit for completion of block assessment 1 58BE (vii) Certain interest and penalty not to be levied or imposed 1 58BF (viii) Levy of interest and penalty in certain cases 1 58BFA (ix) Authority competent to make block assessment 1 58BG (x) Application of other provisions of this Act 1 58BH 29. cursory look at above headings clearly indicates that Chapter XIV-B is code in itself applicable for assessment in search cases. comparison of above can be made with main Act, which is applicable in case of person who has not been searched. (i) Definitions Sec. 2 (ii) Taxability of income other than as result of search Secs. 4, 5 and 6 (iii) Computation of income Sec. 11 5 (iv) Procedure for assessment Chapter XIV where heading is exactly same starting from s. 1 39 to s. 1 58. 3 0 . Hence, it was his submission that thus, Procedure for block assessment which is heading of s. 1 58BC is substitute for heading given in Chapter XIV Procedure for assessment in case of regular assessment. In case jurisdiction to assess normal income arises under provisions of s. 1 39(2) to s. 1 58, then jurisdiction to assess undisclosed income in case of search will definitely arise under s. 1 58BC and not under any other section. 3 1 . It was also his submission that s. 1 58BA provides that where search is initiated under s. 1 32, then AO proceeds to assess undisclosed income in accordance with provision of this Chapter only, takes case out of normal assessment procedure prescribed under Chapter XIV and brings case under Chapter XIV-B. It does not give jurisdiction per se to AO but only makes classification that assessment in case of search shall be made under Chapter XIV-B and not under Chapter XIV. It is important to note that by this section assessee would have got right to contend that assessment even after search is to be followed under normal procedure of assessment under Chapter XIV. Thus, s. 1 58BA makes only classification between two procedures of assessment and nowhere gives jurisdiction. jurisdiction gets created. 32. He further submitted that provisions of s. 1 58BA are akin to provisions of s. 4 of IT Act. Sec. 4 provides that where Central Act enacts that income-tax shall be charged for any assessment year at any rate or rates, income-tax at that rate or those rates shall be charged for that year in accordance with and subject to provisions of this Act in respect of total income of previous year of every person. Sec. 4 creates classification that it is on income that is to be charged in accordance with and subject to provisions of this Act. But for this provision, tax on income could not have been charged under IT Act which is levied by Finance Act every year. Sec. 2 of Finance Act every year provides that income-tax for assessment year commencing from 1 st day of April shall be charged at rates prescribed in Part 1 of First Schedule. First Schedule of Finance Act prescribes rates for various classes of persons. As such, charge of tax on income arises under s. 2 of Finance Act and provisions of IT Act including s. 4 provide that tax at that rate or those rates is to be charged in accordance with and subject to provisions of IT Act. 33. He therefore, argued that thus, it will not be justified to say that s. 1 58BA gives jurisdiction to AO and remaining provisions are not substantive provisions. In fact sub-s. (2) of s. 1 58BA itself supports above interpretation as it provides that total undisclosed income relating to block period shall be charged to tax at rate specified in s. 11 3 as income of block period irrespective of previous year or years to which such income relates and irrespective of fact whether regular assessment of any one or more of relevant assessment years is pending or not. 34. It was also his submission that combined reading of provisions of sub-ss. ( 1 ) and (2) of s. 1 58BA clearly demonstrates that these provisions are akin to provision of s. 4 of IT Act and as such this section only classifies and takes out case in case of search from normal procedure to special procedure prescribed under Chapter XIV-B which as submitted earlier is complete code in itself. 35. He further argued that sequencing of provisions of Chapter XIV-B also supports above contention starting from Definitions , then Charging provision to computation , then Procedure for block assessment . It is also important to note that words used in s. 1 58BA( 1 ) are : "The AO shall proceed to assess undisclosed income in accordance with provisions of this Chapter. words shall proceed to assess are different than words shall assess . use of words shall proceed to assess make it very clear that it is only classification whereby proper clause is being created for charging as well as computation and assessment of person in whose case search has been conducted. Had intention of legislature been to create automatic jurisdiction, there would not have been any need to insert words proceed to . It would have been AO shall assess . use of words proceed to clearly demonstrates that it is only applicability of this Chapter which has been effected to. whole scheme has been framed and language of s. 1 58BA is to carve out case from Chapter XIV." 36. He further submitted that above interpretation gets also justified from provisions of s. 1 58BD applicable where undisclosed income belongs to person other than person in whose case search has been conducted. As submitted earlier, provisions of s. 1 58BC also apply to such other person. If interpretation that s. 1 58BA gives jurisdiction moment search is carried out, obviously such jurisdiction cannot be for person in whose case search has not been conducted. jurisdiction of such other person shall obviously come under s. 1 58BC of Act. If that be so, then jurisdiction of person in whose case search has been conducted shall also flow from s. 1 58BC as both have to follow same procedure. It cannot be said or interpreted that jurisdiction in case of person in whose case search has been conducted will flow from s. 1 58BA whereas in case of any other person jurisdiction will flow from s. 1 58BC. above interpretation cannot be taken unless inserting some words in s. 1 58BC which are not there. provisions of s. 1 58BC are akin to provisions of s. 1 48 of Act and there are number of judgments whereby it has been held that defect in notice are number of judgments whereby it has been held that defect in notice under s. 1 48 will be incurable and proceeding in consequence to any such notice shall be null and void so that it should be annulled and no distinction whatsoever so far as legal requirement of notice to be issued under s. 1 48 or notice to be issued under s. 1 58BC of Act. Sec. 1 48 also prescribes that AO shall serve on assessee notice requiring him to furnish within such period (not being less than 30 days) as may be specified in notice, return of his income of which he is assessable under this Act during previous year corresponding to relevant assessment year. requirement of s. 1 58BC prescribes that AO shall serve notice to such person requiring him to furnish within such time not being less than 1 5 days return setting forth his total income including undisclosed income for block period. As such, requirement and language of both sections are exactly same. Reliance in support of above is being placed on following judgments : (i) CIT vs. Braithwaite & Co. Ltd. ( 1 993) 11CTR (SC) 290 : ( 1 993) 20 1 ITR 343 (SC); (ii) CIT vs. Ekbal & Co. ( 1 945) 1 3 ITR 1 54 (Bom); (iii) Prabhat Sawmill & Timber Merchants vs. ITO ( 1 994) 5 1 ITD 548 (Bang); (iv) CIT vs. Ramsukh Motilal (supra). 37. It was further submitted that issue of notice determines liability of assessee as assessee is liable to pay interest and penalty with reference to such notice only which is very important consideration to make distinction whether section is machinery provision or substantive provision. fact that liability to pay interest and penalty is determined with reference to notice itself supports contention that provisions of s. 1 58BC are substantive provisions. He submitted that sub-cl. (b) of s. 1 58BC provides that AO shall proceed to determine undisclosed income of block period in manner laid down in s. 1 58BC and provisions of ss. 1 42(2), 1 42(3) and 1 44 shall, so far as may be apply. In case it is interpreted that s. 1 58BC is only procedural requirement, then above provisions shall become redundant. 3 8 . It was also his argument that there is another point whether assessment can be made without issue of notice under s. 1 58BC. It is also important to note that as per provisions of s. 1 58BFA(2) no penalty is imposable in respect of income disclosed in block return filed in consequence to notice under s. 1 58BC and tax on basis of such return has been paid and evidence has been furnished along with return of income. In case return filed is not in compliance with provisions of s. 1 58BC, i.e., if it is not filed within period prescribed, there is liability to penalty. 39. It was further submitted that judgment delivered by Amritsar Special Bench in case of Smt. Mahesh Kumari Batra vs. Jt. CIT (supra) where it has been held that mistake in notice issued under s. 1 58BC is only procedural irregularity, which can be cured, has not considered above arguments. In said judgment reference has been made to Supreme Court judgment delivered in case of CIT vs. Pearl Mechanical Engg. & Foundry Works (P) Ltd. (2004) 1 88 CTR (SC) 289 : (2004) 267 ITR 1 (SC) to make distinction between error in jurisdiction and error of jurisdiction . For this reference has been made to judgment of Karnataka High Court in case of A. Premchand Ors. vs. IAC & Ors. ( 1 986) 53 CTR (Kar) 1 53 : ( 1 985) 1 53 ITR 774 (Kar) where it has been held that jurisdiction to initiate proceedings for acquisition of immovable property is conferred on IAC by Chapter XX-A of Act and error committed by IAC in exercise of his own jurisdiction cannot be treated as outside his jurisdiction. By drawing analogy from above interpretation it has been held that since jurisdiction to assess comes to AO from provisions of s. 1 58BA, as such, any error committed under s. 1 58BC will be error in jurisdiction , not error of jurisdiction . According to him that analogy drawn is not correct. In para 1 8 reference has been made to main heading of Chapter XIV-B i.e. Special procedure of assessment of such cases and distinction has been drawn that first three sections are substantive and remaining sections are procedural. In para 20 it has been stated that as per provision of s. 1 58BA( 1 ), it is from this provision AO derives power to assess undisclosed income of person who has been subjected to search. On basis of this interpretation it has been assumed that this provision is in consonance of provision of s. 1 20 which deals with jurisdiction of income-tax authorities and as such AO gets jurisdiction and what he does thereafter will be error in executing jurisdiction and here fallacy lies. provision of s. 1 58BA( 1 ), as submitted earlier, only makes classification that in case of search code of Chapter XIV-B will be applicable and not normal assessment code. This was most important distinction which has not been considered nor argued in that case before Special Bench. As submitted earlier, but for provision of s. 1 58BA( 1 ), special procedure and self-contained code in Chapter XIV-B would not have been applicable. AO will get jurisdiction only after he serves notice under s. 1 58BC and not before. Further, inference drawn in that judgment that provision of s. 1 47 and s. 1 48 in respect of reassessment in case of income escaping assessment and provision of s. 1 58BC in respect of assessment of undisclosed income are different, is not correct. Both are provisions for assessing income which has not already been subjected to tax. In para 20 while drawing above inference again, presumption has been made that AO gets jurisdiction to assess undisclosed income under s. 1 58BA which, as submitted earlier, is not correct. In view of above it is submitted that AO gets jurisdiction by issue of notice under s. 1 58BC and s. 1 58BA( 1 ) only makes classification and gives power to AO to assume jurisdiction by issue of notice under s. 1 58BC of Act. Any defect in issue of such notice shall be defect of jurisdiction and shall be incurable. It is further submitted that provision of s. 1 58BC are mandatory provision and in sub-cl. (a) words used are AO shall . words may and shall have been used at several places in IT Act though it is well, established that construction of word shall depends upon provisions of Act, setting in which direction is given and consequences that follow from infringement of direction and other such considerations. use of word shall in ordinary manner is mandatory and raises prima facie presumption that provision is imperative. 40. He further argued that one of crucial tests to determine whether particular statutory requirement is mandatory or directory is to see whether any penal consequence will follow by non-compliance. However, if penal consequences are indicated, it will serve to infer that statutory requirement is mandatory. In present case, as submitted earlier, penal consequences follow as regards verification of return, immunity from penalty, levy of interest which has direct bearing with issue of notice within period prescribed and filing of return in consequence thereof. As such, it cannot be interpreted that word shall used in s. 1 58BC is not mandatory. 4 1 . Sri J.P. Gulati, advocate, intervener on behalf of Dharambir Bhadana, argued that moot question; inter alia, is what would be fate of assessment where AO has served notice under s. 1 58BC requiring assessee to file return of income within 1 5 days from receipt of notice, whereas s. 1 58BC mandates that time not less than 1 5 days but not more than 45 days, as may be specified in notice has to be allowed. He submitted that immediate and only answer would be that such notice is contrary to provisions contained under s. 1 58BC of Act. next relevant question would arise as to whether such notice suffers from mistake, defect or omission but is in substance and effect in conformity with or according to intent and purposes of Act so as to invoke provisions of s. 292B of Act. Apparently, there is no omission in such notice and what at best can be said is that time-limit of 1 5 days was mentioned by mistake and thus it is defective notice. Then, pertinent question to be considered is whether such mistake or defect in notice which is contrary to mandatory provisions of statute is curable under s. 292B of Act. 4 2 . He submitted that s. 292B was introduced by Taxation Laws (Amendment) Act, 1 975 and in para 47 of Explanatory Notes vide Circular No. 1 79, dt. 30th Sept., 1 975, [( 1 976) 1 2 ITR (St) 28] Board has clarified provisions as under : "A new s. 292B has been inserted to provide that no return of income, assessment notice, summons or other proceedings shall be invalid merely by reason of any mistake, defect or omission, if return, assessment notice, summons or other proceeding is in substance and effect in conformity with or according to intent and purposes of Act. This provision has been made to provide purely technical objections without substance coming in way of validity of assessment proceedings, etc." 43. He urged that words, technical objection has not been clarified in Act. As per Law Lexicon by P. Ramanatha Aiyar, technical defect : "It is mistake which does not go to core of matter". 44. He also pointed out that it would be noticed that there are no provisions whereby it can be said which defects in notice can be covered under s. 292B of Act, and which not. Act, however, provides Explanation below s. 1 39(9) where various defects in return of income have been detailed, which can be removed on being so pointed out by AO and in case of failure to remove such defects return of income has to be treated as invalid. However, in addition to defects mentioned in Explanation below s. 1 39(9), there can be other circumstances where return of income may not in accordance with mandatory provisions of Act, for example it is not signed and verified by assessee, and in such circumstances, such return would be invalid one. 45. After pointing out above, he argued that Chapter XIV-B of IT Act, 1 96 1 contains special procedure for assessments of search cases. It does not contain any provisions whereby assessee can file return for block period on his own. proceedings can be initiated only when AO shall issue notice as is prescribed under s. 1 58BC requiring assessee to file return of income within time mentioned in notice and such time shall not be less than 1 5 days and not more than 45 days. For understanding true import of provisions of s. 1 58BC, provisions of s. 1 58BFA( 1 ) may be considered, which lays down that where return for block period is furnished after expiry of period specified in such notice, or is not furnished, assessee shall be liable to pay simple interest at rate of one per cent of tax on undisclosed income, for every month or part of month comprised in period commencing on day immediately following expiry of time specified in notice. It would thus be noticed that for charging interest, since part of month would be taken as one month, interest charged under certain circumstances would vary when time allowed in notice is 1 5 days and not 1 6 days. For example, if notice under s. 1 58BC is served and 1 5 days period expired one day prior to end of relevant month and return is not filed within prescribed time, then interest would be charged for one complete month, even when delay is of only one day. However, in case time allowed in notice under s. 1 58BC is of 1 6 days, then interest would be charged only from next month and thus interest under s. 1 58BFA( 1 ) in two situations would be different. It is admitted position of law that interest under s. 1 58BFA( 1 ) is mandatory and same cannot be waived. It would thus be seen that when time to file return allowed is within 1 5 days and not less than 1 5 days i.e. at least 1 6 days, interest under s. 1 58BFA( 1 ) would be drastically different and thus such defect cannot be said without substance. If such defect is examined deeper and time allowed is considered ranging between 1 6 to 45 days, then ambiguity in implementation of s. 1 58BFA( 1 ) would be further compounded. It can thus safely be said that such defect cannot be said to be technical or minor but it would be fatal to provisions of s. 1 58BFA( 1 ) of Chapter XIV-B of Act. 46. He also pointed out that similar position also existed in provisions of s. 1 48 prior to its amendment by Finance Act, 1 996, which required that notice under s. 1 48 can be issued to assessee for filing of return of income within specified period not being less than 30 days. Sec. 1 48 was modified with retrospective effect from 1 st April, 1 989 and Board s Explanatory Notes on Finance Act, 1 996 are to following effect : "Notices issued under s. 1 48 have been held to be invalid by Tribunal on ground that whereas statute allows taxpayer time not being less than thirty days , notice gives direction to file return within period of thirty days . Bombay High Court in case of CIT vs. Ekbal & Co. ( 1 945) 1 3 ITR 1 54 (Bom) decided similar issue by laying down that expression within thirty days and not less than thirty days are two quite different things. In view of aforesaid decisions of Bombay High Court and also of Tribunal, Act provides in s. 1 48 that AO may require assessee to furnish return within period specified in notice." 4 7 . He also submitted that Hon ble Bombay High Court in CIT vs. Sudhir S. Mehta (2003) 1 83 CTR (Bom) 592 : (2004) 265 ITR 548 (Bom) has upheld Tribunal s order cancelling assessment since notice under s. 1 48( 1 ) issued requiring assessee to file return within thirty days was held contrary to provisions of s. 1 48( 1 ) as existing at that time. Department s plea in application under s. 254(2) that s. 1 48 has been amended with retrospective effect from 1 st April, 1 989 was not admitted on reason that assent of President was received on 28th Sept., 1 996 whereas Tribunal had already passed order on 26th June, 1 996. 48. He drew our attention to decision of Madhya Pradesh High Court in Khialdas & Sons vs. CIT ( 1 998) 1 46 CTR (MP) 742 : ( 1 997) 225 ITR 960 (MP) wherein at p. 962 clarifying provisions of s. 292B and it has been opined that idea is that if any minor defect is there which does not militate against intent and purpose of Act, then such minor defect can be cured but according to s. 1 40 which is mandatory, every return has to be signed and verified. Sec. 1 40 says that return under s. 1 39 shall be signed and verified. word "shall" has been used which shows that it is mandatory that every return should be signed and verified and if it is not signed and verified, then it is in breach of provisions of s. 1 40 of Act. Therefore, this cannot be defect which can be cured and any return which has been filed without signature and verification of assessee, will not be treated as valid return. 49. He urged that it seems that provisions of s. 292B can be invoked only where defects are minor in nature i.e., some irrelevant columns were not struck of but notice was properly served etc., and thus pure technical objection has been raised. However, if notice is contrary to mandatory provisions of statute, such notice cannot be said to be defective, but it is no notice and entire proceedings would be bad in law. 5 0 . He pointed out that Tribunal, Amritsar, Special Bench, in Smt. Mahesh Kumari Batra vs. Jt. CIT (supra) have made analysis of provisions of s. 1 58BC vis-a-vis s. 1 48 and have opined that it cannot be said that notice under s. 1 58BC is akin to one issued under s. 1 48 and that any defect in notice or with regard to its issue cannot render block assessment proceedings to be null and void. However, in Janki Exports International vs. Union of India & Ors. (2005) 1 93 CTR (Del) 730 : (2005) 278 ITR 296 (Del) jurisdictional High Court have opined that s. 1 58BD is analogous to s. 1 47 of Act. 5 1 . He further pointed out that apex Court in Parashuram Pottery Works Co. Ltd. vs. ITO 1 977 CTR (SC) 32 : ( 1 977) 1 6 ITR 1 (SC) at p. 1has opined : "It has been said that taxes are price that we pay for civilization. If so, it is essential that those who are entrusted with task of calculating or realising that price should familiarize themselves with relevant provisions and become well versed with law on subject. Any remissness on their part can only be at cost of national exchequer and must necessarily result in loss of revenue." 52. He argued that it needs no emphasis that valid notice is sine qua non for assuming jurisdiction and if for any reason, notice is invalid insofar as it is contrary to mandatory provisions of section, provisions of s. 292B cannot come to rescue such blatant illegality and infirmity committed in notice under s. 1 58BC where minimum time prescribed therein is not allowed. 53. He submitted that no doubt, on face of it may appear that when in notice under s. 1 58BC it is mentioned that return should be furnished within 1 5 days instead of within 1 6 days , it is only mistake, but it would be pertinent to consider as to whether such mistake could be rectified and if so, how it should be done, particularly when such defect was not remedied by AO by giving another corrected notice before assessment was completed. (i) Can such defect be ignored by invoking provisions of s. 292B of Act, where assessee had filed return either within 1 5 days or after 1 5 days and no objection was raised at stage of assessment proceedings; or (ii) assessment may be set aside with direction that another notice under s. 1 58BC should be served and assessment may be made afresh in accordance with law; or Since notice under s. 1 58BC already served was invalid one, whole proceedings are bad in law and thus assessment may be declared null and void. 5 4 . He at last argued that to remedy defect by setting aside assessment to be made afresh would not be appropriate remedy, as it would be premium to Revenue for failures committed by it. It is also felt that in case it is held that assessee cannot waive such defect in law, then appellate authority would also not be competent to condone such defect or mistake, and only remedy probably left over would be to cancel assessment being bad in law, or amendment in s. 1 58BC is made in same manner as was done in regard to s. 1 48 of Act, as it existed prior to its amendment by Finance Act, 1 996. He also placed reliance on following judgment of Tribunal : Navin Verma vs. Asstt. CIT (2006) 1 5 TTJ (Del) 952 : (2006) 283 ITR 83 (Del)(AT), where following judgments have been relied upon : Vinod Kumar vs. Asstt. CIT (2005) 98 TTJ (Agra) 769 (Unreported judgment of Tribunal E Bench, New Delhi dt. 9th Feb., 2005 in IT(SS)A Nos. 1 42 and 1 43/Del/2003 in Neera Agarwal and Anil Agarwal vs. Dy. CIT. 5 5 . learned Departmental Representative Shri K.C. Jain, CIT- Departmental Representative at outset relied on decision of Hon ble Bombay High Court in Shirish Madhukar Dalvi vs. Asstt. CIT (2006) 203 CTR (Bom) 62 1 and quoted from p. 634 para Nos. 46 to 48 as under : "46. Having examined factual matrix statutory provision, law laid down by various Courts presently holding field, if one turns to facts of case at hand, it is not in dispute that notice dt. 6th July, 1 998 did not mention correct provisions of Act; it did not mention correct block period for which return was required to be filed; it did not give 1 5 days clear notice. Though said notice was defective, it did not cause any prejudice to appellant. Undisputed factual matrix reveals that appellant was served with another notice dt. 1 7th Sept., 1 998 mentioning block period for which return was required to be filed incorporating correct reference to sections applicable to case in question and it mentioned that period of 45 days for filing return was available to appellant which appellant did not avail. He was directed to file return. 47. Pursuant to above notice dt. 1 7th Sept., 1 998, appellant approached Dy. CIT vide his letter dt. 28th Sept., 1 998 and sought further extension of 45 days for filing block period return. He has, accordingly, filed his return on 2nd Nov., 1 998, declaring total income of Rs. 1 ,0 1 ,33,700. same was accordingly assessed vide assessment order dt. 30th June, 2000. 48. It is not in dispute that notice dt. 6th July, 1 998 did not cause any prejudice to appellant. During course of hearing, we specifically asked Mr. Sathe as to what prejudice was suffered by appellant on account of alleged defective notice dt. 6th July, 1 998. He made positive statement no specific prejudice was suffered by appellant. At any rate, notice dt. 6th July, 1 998 suffered from only technical defects, if any, and, in our opinion, it was protected under umbrella of s. 292B of Act." 56. learned Departmental Representative also placed reliance on decision of Amritsar Special Bench of Tribunal in Smt. Mahesh Kumari Batra vs. Jt. CIT (supra). principles enunciated in said decisions are as under : (a) That provisions of Chapter XIV-B provide for special procedure for assessment of undisclosed income found in course of search; (b) That concept of undisclosed income under Chapter XIV-B is narrower than and different from concept of income escaping assessment under s. 1 47 of Act; (c) Though, broadly speaking, Chapter XIV-B contains machinery provisions for assessment of undisclosed income, it does contain provisions which are in realm of substantive law. At least, ss. 1 58B, 1 58BA and 1 58BB are such provisions, whereas s. 1 58BC is in realm of procedural law; (d) Sec. 1 58BA( 1 ) gives power to AO to assess undisclosed income and such power is conferred on AO at time when search is initiated in case of person. Thus, existence of jurisdictional fact of search having been initiated gives power to AO to assess undisclosed income. (e) acquisition of power by AO is not at all related to formation (e) acquisition of power by AO is not at all related to formation of belief by AO that person has not disclosed certain income. (f) AO can and has to activate his power only on completion of search; (g) Since action of using notice under s. 1 58BC is within jurisdiction and not of assuming jurisdiction, any error committed in such action cannot render whole assessment nullity and that such errors are rectifiable by s. 292B of Act. 57. He further relied on decision of Special Bench of Tribunal in case of Promain Ltd. vs. Dy. CIT (2005) 95 TTJ (Del)(SB) 825 : (2005) 95 ITD 489 (Del)(SB) wherein it was held that though jurisdiction to assess undisclosed income found as result of search initiated after 30th June, 1 995 is vested in AO under s. 1 58BA, actual exercise of such power begins under s. 1 58BC by serving notice on assessee to file return for block period. (para 50) 58. Further reliance was placed by him in case of Chatturam & Ors. vs. CIT ( 1 947) 1 5 ITR 302 (FC) wherein it was held that income-tax assessment proceedings commence with issue of notice. issue or receipt of notice is not, however, foundation of jurisdiction of ITO to make assessment or of liability of assessee to pay tax. liability to pay tax is founded on ss. 3 and 4 of IT Act, which are charging sections. Sec. 22 and others are machinery sections to determine amount of tax. 59. learned Departmental Representative distinguishing decisions cited by Authorized Representative of assessee as well as interveners, submitted that in those cases it has not been held that jurisdiction to assess assessee for block period is derived by AO by issue of notice under s. 1 58BC(a)(i) of IT Act, 1 96 1 . 6 0 . He submitted that concept of jurisdiction itself needs to be considered carefully lest question of assuming jurisdiction and question of following machinery provisions where jurisdiction already exists is confused. There is no dispute that jurisdiction cannot be assumed if same doesn t exist and question of waiver does not arise in such cases. There are different dimensions of jurisdiction. jurisdiction can be with reference to particular area, type of cases, with reference to profession, monetary limit etc. or it can be with reference to specially assigned cases. In all such cases if AO does not have jurisdiction over certain cases, no amount of waiver on part of assessee can confer this jurisdiction on him. Similarly if time-limit for issuing notice or framing assessment is over, AO becomes functus officio. On other hand if AO is having jurisdiction but it is only case of framing assessment by following certain machinery provisions, and if these machinery provisions are not followed properly then it will be question of irregularity which can be cured by taking matter back to stage where irregularity occurred. This is so because taxability arises by virtue of ss. 3 and 4 of IT Act and s. 1 42 etc., are machinery provisions provided for procedure to be followed while determining amount of tax chargeable. 6 1 . He viewed that question of validity of notice under s. 1 58BC of IT Act wherein sufficient time for filing return has not been given is to be examined in this context. It is to be noted that unlike s. 1 48, in case of block assessment AO doesn t get jurisdiction consequent upon issue of notice by him. In fact, jurisdiction gets conferred on him by virtue of s. 1 58BA( 1 ) of IT Act which provides that in case of action under s. 1 32 of IT Act "the AO shall proceed to assess undisclosed income in accordance with provisions of this Chapter." This provision firstly confers jurisdiction on AO and secondly makes it mandatory for him to make assessment as per provisions of this Chapter. It is immaterial whether any undisclosed income was found during search or not and AO even for determining nil undisclosed income has to pass assessment order. Thus question of issue of notice under s. 1 58BC is only in compliance to machinery provisions and any irregularity therein doesn t go to root of matter and is therefore curable. Even plain reading of s. 1 58BC of Act makes it clear that where any search has been conducted under s. 1 32/ 1 32A of IT Act AO has to issue notice and frame assessment. It has been specifically provided that no notice under s. 1 48 is required to be issued in such cases. Reference to this particular provision is extremely important because, as discussed above, jurisdiction under s. 1 48 is acquired by virtue of notice issued by AO whereas in case of search jurisdiction is conferred by virtue of action under s. 1 32 of IT Act and is not dependent on issue of notice. To this extent s. 1 58BA is more akin to s. 1 39 of IT Act and similarly s. 1 58BC is in tune with s. 1 43 of IT Act. 6 2 . He vehemently argued that all decisions of various High Courts/Supreme Court cited can be seen in light of above proposition. If it has been found that jurisdiction was acquired by virtue of issue of notice Courts have held that if notice was not validly issued, it goes to root of matter and such defect is not curable. However if notice was issued merely to comply with machinery provisions then it is question of irregularity which can be set right. 63. He pointed out that in CIT vs. Gyan Prakash Gupta ( 1 986) 54 CTR (Raj) 69 : ( 1 987) 1 65 ITR 50 1 (Raj) issue was that, If non-issue of notice under s. 1 43(2) vitiates proceedings when notice was not issued in name of legal heir and it was held that failure to serve notice on assessee under s. 1 43(2) of Act is merely irregularity and ITO, until and unless he gets notices served, cannot complete assessment. We find it difficult to hold that ITO has no jurisdiction in respect of proceedings. As soon as return is filed, he gets seized over case. He has jurisdiction over it, but on failure to comply with s. 1 43(2) of Act, only limited restriction is that he cannot complete assessment. In these circumstances, assessment orders completed without service of proper notice under s. 1 43(2) cannot be said to be ab initio void and when it is not so, assessment order cannot be annulled. 6 4 . He submitted that on reading of decision in Estate of Late Rangalal Jajodia vs. CIT ( 1 97 1 ) 79 ITR 505 (SC) principle that emerges is that defect in service of notices provided by procedural provisions does not efface or erase liability to pay tax where such liability is created by distinct substantive provisions (charging sections). Any such omission or defect may render order made irregular depending upon nature of provision not complied with but certainly not void or illegal. 65. He also submitted that in Dhirendra Nath Gorai vs. Sudhir Chandra Ghosh AIR 1 964 SC 1 300, following passage from decision in Ashutosh Sikdar vs. Behari Lal Kirtania ( 1 907) ILR 35 Cal. 6 1 (FB) was cited with approval to bring about distinction between nullity and irregularity : ".... no hard and fast line can be drawn between nullity and irregularity; but this much is clear, that irregularity is deviation from rule of law which does not take away foundation or authority for proceeding, or apply to its whole operation, whereas nullity is proceeding that is taken without any foundation for it or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated." In Dhirendra Nath Gorai vs. Sudhir Chandra Ghosh (supra), following observations were made in this context : "Where Court acts without inherent jurisdiction, party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, directory provision can obviously be waived. But mandatory provision can only be waived if it is not conceived in public interest, but in interest of party that waives it." 66. It would thus appear to be well settled that where authority, who does not lack inherent jurisdiction, acts in contravention of mandatory provision, it would be open to aggrieved party to waive its objection to such breach if provision is not conceived in public interest but in interest of party waiving it. underlying principle appears to be that everyone has right to waive and to agree to waive advantage of law or rule made solely for benefit and protection of individual in his private capacity, which may be dispensed with without infringing any public right or public policy. In other words, if statutory conditions are inserted simply for security or benefit of party to proceeding and no public interests are involved, such conditions will not be considered as indispensable and either party may waive them without affecting jurisdiction of authority seized of proceeding. 67. learned Departmental Representative also relied on decision of Hon ble Supreme Court in Ashok Lanka vs. Rishi Dixit (2005) 5 SCC 598 : AIR 2005 SC 282 1 wherein it was held that question as to whether statute is mandatory or directory would depend upon statutory scheme. Use of expression "shall" or "may" by itself is not decisive. Court while construing statute must consider all relevant factors including purpose and object statute seeks to achieve. 68. learned Departmental Representative relying on decision in case of CIT vs. Bharatkumar Modi (2000) 1 64 CTR (Bom) 273 : (2000) 246 ITR 693 (Bom) submitted that it was held it is well settled principle of law that there is difference between lack of jurisdiction and irregular exercise of authority /jurisdiction. proceeding is nullity when authority taking it has no power to have seisin over case. first appellate authority has come to conclusion that there was no bias against assessee. However, there was violation of rule of natural justice and, therefore, CIT(A) exercised his authority under s. 25 1 of Act by remitting back to AO after setting aside impugned order passed by AO. There was no justification for Tribunal to hold that assessment was nullity. learned Departmental Representative therefore submitted that not giving notice of 1 5 days to assessee to file return under s. 1 58BC was at most irregularity which could be cured and not nullity which would render assessment order null and void. 69. learned Departmental Representative further relied on decision in case of CIT vs. Pearl Mechanical Engg. & Foundry Works (P.) Ltd. (supra) wherein it was held that jurisdiction always emanates directly and immediately from law; it is power which nobody on whom law has not conferred it can exercise. In other words, "jurisdiction" has reference to power of Court ro Tribunal over subject-matter, over res or property in contest, and to authority of Court to render judgment or decree it assumes to make. It is in this sense that publication of notice in Official Gazette confers jurisdiction on competent authority to take proceedings for acquisition of immovable properties under Chapter XX-A of Act. service of notice under sub-s. (2) of s. 269D upon transferor and transferee meets of notice under sub-s. (2) of s. 269D upon transferor and transferee meets requirement of natural justice so that they may file objections in writing against action which is proposed to be taken, namely for acquisition of property. Any error or mistake committed in service of notice does not in any manner affect jurisdiction conferred upon competent authority to take proceedings for acquisition of property. service of notice prior to publication in Official Gazette is merely irregularity committed during course of proceedings and cannot have effect of nullifying entire proceedings which are validly commenced by publication in Official Gazette. In fact, no prejudice is occasional to transferor or transferee by service upon them of notice prior to publication in Gazette. We are, therefore, of opinion that prior service of notice under sub-s. (2) of s. 269D is at best irregularity but it cannot have effect of rendering proceedings either illegal or without jurisdiction. Hence, it was his submission that this case also supports his argument that giving of 1days notice to assessee for filing his return under s. 1 58BC(a)(i) was irregularity which would not make assessment order framed as null and void. 70. In rejoinder Shri Ajay Vohra, advocate for assessee submitted that at outset, it is submitted that during course of hearing and in written submission filed, Revenue has fairly conceded that expression "shall" as used in s. 1 58BC of Act, makes it mandatory on AO to issue notice under that section. sum and substance of Revenue s argument was that provisions of Chapter XIV-B are akin to original assessment proceedings. According to Revenue, as in original assessment proceedings jurisdiction is assumed by AO on basis of return filed by assessee, similarly, in terms of s. 1 58BA of Act, jurisdiction under Chapter XIV-B is assumed on basis of valid search on assessee. provisions of s. 1 58BC are, according to Revenue, in tune with procedure of assessment prescribed in s. 1 43 and notice issued under s. 1 58BC(a) is akin to notice issued under s. 1 43(2) of Act. 7 1 . He submitted that on basis of aforesaid, it was contended on behalf of Revenue that non-issuance of notice does not vitiate proceedings, as has been held by Supreme Court in CIT vs. Jai Prakash Singh ( 1 996) 1 32 CTR (SC) 262 : ( 1 996) 2 1 9 ITR 737 (SC), Rajasthan High Court in case of CIT vs. Gyan Prakash Gupta (supra) and Third Member decision in Ashok Kumar vs. ITO (2002) 74 TTJ (Asr)(TM) 702 : (2002) 80 ITD 33 (Asr)(TM). 7 2 . He argued that in response, it is respectfully submitted that submission of Revenue that non-issuance of notice under s. 1 43(2) of Act does not vitiate assessment and is merely procedural error is not correct. While so contending, Revenue has failed to appreciate distinction in scheme of assessment under s. 1 43(3) (regular assessment) and assessment under Chapter XIV-B of Act. In regular assessment, AO having territorial jurisdiction over person (jurisdiction to assess) assesses return of income which assessee is obliged to file under provision of Act. jurisdiction to make order of assessment is assumed moment return is filed by assessee. non-issue of/service of notice would, in such circumstances, amount to curable defect. Where no return is filed, though legally due, notice under s. 1 42( 1 ) of Act calling for return is jurisdictional notice conferring jurisdiction on AO to make order of assessment. Failure to serve such notice within time specified in statute would vitiate assessment. Similarly, service of notice under s. 1 43(2) of Act to frame scrutiny assessment beyond statutory period would invalidate assessment and cannot be regarded as mere procedural irregularity. 73. It was his submission that under Chapter XIV-B notice is issued under s. 1 58BC of Act calling for return of income for block period. Unless such notice is validly issued and served on assessee, assessee is not suo motu required to furnish any return for block period unlike scheme of regular assessment. Such notice calling for return, therefore, confers jurisdiction on AO for making order of assessment. 74. It was also his submission that Special Bench of Tribunal in case of Motorola Inc. vs. Dy. CIT (supra) noted in detail distinction between initiating assessment itself and exercising powers for making assessment. On careful reading of decision it is patently clear that issuing of notice calling for return results in initiation of assessment and therefore, any illegality in validly initiating assessment would vitiate entire assessment resulting in assessment being declared as nullity. It is pertinent to reproduce following conclusions of Tribunal arrived at after in-depth analysis of scheme of assessment under provisions of Act : "38. 1 On careful consideration of rival submissions, we are of view that arguments advanced for assessees are well taken. Sec. 1 42 of IT Act, prior to its amendment had title Inquiry before assessment . It started with words for purpose of making assessment . It then did not have cl. (i) of sub-s. ( 1 ) authorising AO to call for return from assessee. Other clauses empowered AO to ask assessee to produce or cause to be produced accounts and documents and give information in writing and verified in prescribed manner. In present appeal, there is no quarrel that as far as powers given to AO in provisions other than cl. (i) of sub-s. ( 1 ) of s. 1 42 are concerned, they can be exercised for purpose of making assessment at any time before assessment is made. AO can ask assessee to produce accounts etc. and do every thing provided in cls. (ii) and (iii) of sub-s. ( 1 ) up to time of making assessment. But it does not follow that AO, for making assessment, can exercise any power at any time without satisfying conditions attached to exercise of power. Issue of notice calling for return i.e. power which was earlier exercised under s. 1 39(2) of IT Act for initiation of assessment proceedings, cannot be exercised after end of assessment year without recourse to s. 1 47/ 1 48 of Act. question of making assessment would arise only if some proceedings have been initiated and are pending. Only then question of exercising powers for purpose of making assessment would arise. power for initiation of proceedings as per scheme of Act is very different from power of making assessment. Therefore, contention that power of making assessment or reassessment can only be exercised after initiating assessment or reassessment proceedings is well taken .........." 75. He argued that in aforesaid case, it is pertinent to mention that Tribunal was pleased to quash assessment since notice issued by AO under s. 1 42( 1 ) of Act calling for return of income was held to be bad in law. There being no return of income, there was, thus, no valid initiation of bad in law. There being no return of income, there was, thus, no valid initiation of assessment and consequently assessment was illegal and bad in law. 76. He further submitted that similarly, under scheme of assessment under Chapter XIV-B of Act, in absence of valid notice calling for return of income, there is no valid initiation of assessment and consequently, assessment framed pursuant to invalid notice would be illegal and bad in law. 77. Further his submission was that under amended scheme of Act, where notice under s. 1 43(2) of Act must be served on assessee within 1 2 months of filing of return by assessee, it has been consistently held that issue and service of valid notice is not merely procedural requirement but condition precedent for assuming valid jurisdiction to make order of assessment under s. 1 43(3) of Act. Kind attention, in this regard, is invited to following decisions : (a) Hind Book House vs. ITO (2005) 93 TTJ (Del) 224 : (2005) 92 ITD 4 1 5 (Del); (b) World Wide Exports (P) Ltd. vs. ITO (2004) 9 1 ITD 5 1 9 (Del); (c) Uma Polymers (P) Ltd. vs. Asstt. CIT (2002) 1 23 Taxman 226 (Mumbai)(Mag); (d) Smt. Heminder Kumari vs. Asstt. CIT (2002) 1 23 Taxman 1 9 (Del)(Mag); (e) Maxima Systems Ltd. vs. Dy. CIT ( 1 999) 1 6 Taxman 1 33 (Ahd)(Mag); (f) Arasina Hotels Ltd. vs. Dy. CIT ( 1 997) 57 TTJ (Bang) 70 1 : ( 1 997) 60 ITD 667 (Bang); (g) Sree Murugan Trading Co. vs. Asstt. CIT (ITA No. 90 1 /Coch/ 1 992) (h) Sheraton International Inc. vs. Dy. CIT (ITA No. 22 1 6/Del/200 1 ) [reported at (2004) 86 TTJ (Del) 1 26 Ed.] (i) Smt. C. Malathy vs. ITO (2004) 89 TTJ (Chennai) 938 : (2004) 88 ITD 37 (Chennai); (j) Bhan Textiles (P) Ltd. vs. Dy. CIT (2005) 1 49 Taxman 1(Del)(Mag). 78. He submitted that reliance placed by Revenue on decision Gyan Prakash Gupta s case (supra) to contend that non-service of valid notice under s. 1 43(2) of Act will not vitiate assessment is, in our respectful submission, misplaced. In that case, notice issued by AO against assessee, who had died after filing return, was received by his son, Gyan Prakash Gupta (legal heir of assessee). On receipt of said notice, son intimated ITO, names of other legal heirs. AO, however, without serving notice on other legal heirs, completed assessment in name of Gyan Prakash Gupta. In appeal filed by Revenue against order of Tribunal quashing assessment, High Court, after referring various judicial precedents rendered in context of fate of assessment framed without service of notice on all legal heirs of deceased assessee, held that though assessment completed was invalid, same cannot be said to be ab initio void. 79. He submitted that similarly, in case of Jai Prakash Singh (supra), Supreme Court held that assessment framed without service of notice on all legal representatives cannot be held to be void or illegal. Their Lordships referred to and relied upon decision in Estate of Late Rangalal Jajodia (supra). In that case also, issue before their Lordships was whether assessment completed without issue of notice on legal representative is void or would merely render order irregular. Court held that order so passed cannot be held to be void or illegal. decision of Third Member in Ashok Kumar (supra) is also to same effect. 80. He stated that aforesaid decisions relied upon by Revenue, in our respectful submission, dealt with denial of opportunity of hearing to all legal heirs and consequent violation of principles of natural justice. said decisions are thus not applicable and relevant for deciding issue under consideration by Hon ble Bench. aforementioned cases cannot be equated to cases of assessment made without issue and service of valid notice on assessee. 8 1 . It was his argument that in aforesaid cases defect was held to be procedural since notice was issued and served on one legal representative and not on all legal representatives as required under law. Court, therefore, held that non-service of notice on all legal heirs is only procedural. 8 2 . He further argued that aforesaid cases cannot be held to be authority for proposition that where valid notice is either not issued and/or not served on assessee under s. 1 42 or under s. 1 58BC of Act calling for return, there is only irregularity which can be cured by setting aside assessment order. 83. He pointed out that it is pertinent to mention that Special Bench of Tribunal in case of Raj Kumar Chawla vs. ITO (2005) 92 TTJ (Del)(SB) 1 245 : (2005) 94 ITD 1 (Del)(SB) has held that no assessment can be made under s. 1 43(3) if notice under s. 1 43(2) of Act is not served within time prescribed in proviso to that section. assessment framed without service of notice within statutory period was held to be invalid and bad in law. 84. He also submitted that similarly, Delhi Bench of Tribunal in case of Dr. K.C. Verma (supra) [affirmed by Delhi High Court in CIT vs. Dr. K.C. Verma (supra)] has held that jurisdiction to assess can be assumed only within four corners of provision of s. 1 43. 85. It was submitted by him insofar as issue under consideration is concerned, it is emphatically reiterated that even though jurisdiction to deal with matter under Chapter XIV-B of Act is assumed on basis of valid search, jurisdiction to make order of assessment under s. 1 58BC of Act is assumed only on issue and service of valid notice under that section. Jurisdiction to assess under s. 1 58BC of Act is lost if proper and valid notice under cl. (a) of that section is not served on assessee. 86. It was his submission that decision of Bombay High Court in case of Shirish Madhukar Dalvi vs. Asstt. CIT (supra) (refer pp. 74 to 8 1 of paper book) relied upon by Revenue is distinguishable. In that case, notice dt. 6th July, 1 998 was issued to assessee for filing return for block period. said notice did not prescribe minimum 1 5 days statutory period for filing block return. Subsequently, another notice dt. 1 7th September, 1 998 was issued to assessee which complied with requirement of s. 1 58BC(a) of Act (including allowing appellant statutory period of 1 5 days for filing return). assessee challenged validity of block assessment on ground that : "(a) original notice dt. 6th July, 1 998 was not served on assessee; and (b) in any case, said notice did not prescribe minimum statutory period of 1 5 days for filing return, and, therefore, block assessment was invalid." 8 7 . He submitted that before Hon ble High Court, Revenue submitted that subsequent notice dt. 1 7th Sept., 1 998 strictly complied with requirements of s. 1 58BC(a) of Act, receipt of which was not disputed by assessee and, therefore, illegality of earlier notice dt. 6th July, 1 998 stood cured and order of assessment could not be said to be bad and illegal. During course of hearing their Lordships asked counsel for assessee to specify prejudice suffered by assessee on account of alleged defective notice dt. 6th July, 1 998, to which positive statement was made that no prejudice was suffered by assessee. 88. It was his submission that in aforesaid factual matrix and on concession of counsel for assessee, their Lordships concluded that block assessment completed in case of assessee was not invalid and was not bad in law. It is pertinent to reproduce following observations of Court : "Having examined factual matrix, statutory provision, law laid down by various Courts presently holding field, if one turns to facts of case at hand, it is not in dispute that notice dt. 6th July, 1 998 did not mention correct provisions of Act; it did not mention correct block period for which return was required to be filed; it did not give 1 5 days clear notice. Though said notice was defective, it did not cause any prejudice to appellant. Undisputed factual matrix reveals that appellant was served with another notice dt. 1 7th Sept., 1 998 mentioning block period for which return was required to be filed incorporating correct reference to sections applicable to case in question and it mentioned that period of 45 days for filing return was available to appellant which appellant did not avail. He was directed to file return. Pursuant to above notice dt. 1 7th Sept., 1 998, appellant approached Dy. CIT vide his letter dt. 28th Sept., 1 998 and sought further extension of 45 days for filing block period return. He has, accordingly, filed his return on 2nd Nov., 1 998, declaring total income of Rs. 1 ,0 1 ,33,700. same was accordingly assessed vide assessment order dt. 30th June, 2000. It is not in dispute that notice dt. 6th July, 1 998 did not cause any prejudice to appellant. During course of hearing, we specifically asked Mr. Sather as to what prejudice was suffered by appellant on account of alleged defective notice dt. 6th July, 1 998. He made positive statement no specific prejudice was suffered by appellant. At any rate, notice dt. 6th July, 1 998 suffered from only technical defects, if any, and, in our opinion, it was protected under umbrella of s. 292B of Act." 89. It was his argument that aforesaid observations clearly reveal that aforesaid decision of Bombay High Court proceeded on its own peculiar facts. 90. Firstly, it was submitted that decision of Bombay High Court proceeded on basis of concession of counsel of assessee and, therefore, cannot be held to be binding precedent. 9 1 . It was also submitted that kind attention of Hon ble Bench is invited to following decisions wherein Supreme Court has held that judgment proceeding on concession does not become binding precedent : (i) Lakshmi Shanker Srivastava vs. State (Delhi Administration) AIR 1 979 SC 45 1 (Annex. 1 ) (ii) Director of Settlements vs. M.R. Apparao AIR 2002 SC 1 598 (Annex. 2 ) 92. It was his submission that in aforesaid case, assessee was 92. It was his submission that in aforesaid case, assessee was issued and served with fresh valid and proper notice under s. 1 58 BC of Act, strictly complying with requirements of that section and assessee was not able to state any prejudice caused due to earlier defective notice dt. 6th July, 1 998. Court, therefore, concluded that requirements of s. 1 58BC(a) of Act, were in sum and substance complied with. 9 3 . It was his submission on contrary, in present case, appellant was only served with one notice which, undisputedly, does not conform to requirements of s. 1 58BC of Act, requiring/mandating that assessee should be allowed 1 5 days clear time for filing return. Further, appellant has elaborately stated prejudice that results if requirements of s. 1 58BC are not complied with (i) denial of opportunity to file revised return, (ii) imposition of penalty, and (iii) imposition of interest under s. 1 58BFA of Act. 9 4 . He further submitted that decision of Special Bench of Tribunal in case of Smt. Mahesh Kumari Batra (supra) did not consider issue referred before this Hon ble Bench. In that case, assessee had challenged validity of block assessment on ground that notice issued under s. 1 58BC of Act, did not refer to correct block period and was served on advocate not holding valid power of attorney on behalf of assessee. Special Bench considered effect of issuance and service of such defective notice on validity of block assessment. 9 5 . He submitted that Special Bench held that AO assumed jurisdiction on basis of valid search conducted under s. 1 32 of Act. In para 23 on page 1 73 of reported judgment, Special Bench held that by using word "shall" in s. 1 58BC of Act, it has been made obligatory for AO to issue notice under that section, which clearly supports case of appellant herein that issue and service of valid and proper notice is mandatory requirement. Special Bench accordingly observed : ". . . Sec. 1 58BC merely sets in motion machinery to quantify liability of assessee. notice served by AO is first step in this direction which will make earlier three provisions which are substantive in nature to be workable. By virtue of s. 1 58BA( 1 ), AO obtains power connection. Under s. 1 58BC, he switches on that power by issue of notice. . . ." 96. Accordingly, it was submitted that aforesaid correctly illustrates legal position that by virtue of s. 1 58BA( 1 ), AO obtains power connection and under s. 1 58BC of Act, he switches on that power by issue of notice. By not issuing notice under s. 1 58BC of Act or by issuing invalid notice, having no legal sanctity in eye of law, AO does not switch on power connection and thus fails to assume jurisdiction to make order of assessment under s. 1 58BC of Act. 97. He further submitted that aforesaid decision of Special Bench, in our respectful submission, holds that conduct of valid search only confers jurisdiction on AO to assess, invoke provisions of Chapter XIV-B and deal with matter under that Chapter. Jurisdiction to make order of assessment under s. 1 58BC of Act is assumed only on issuance and service o f proper and valid notice under that section, which has been held to be obligatory. 98. It was also his submission that Special Bench did not consider aforesaid issue and dealt with defects such as incorrect mentioning of block period and service on advocate holding no valid power of attorney. same were held to be mere procedural irregularities considering that : (a) block period is statutorily defined; (b) assessee had participated in block proceedings pursuant to issue of notice under s. 1 58BC of Act. Special Bench decision aforesaid, therefore, supports case of assessee rather than being viewed as against assessee. 99. He further submitted that observation of Karnataka High Court in case of B.M. Reddy vs. Asstt. CIT (2006) 202 CTR (Kar) 578 : (2006) 284 ITR 245 (Kar) to effect that machinery for passing assessment orders in search cases commences with search itself is, in our respectful submission, not in accordance with scheme of Act and judgments of Courts where distinction has been made between jurisdiction to assess and jurisdiction to make order of assessment. said observation has been made without analyzing scheme of assessment under Chapter XIV-B of Act and is also in direct conflict with decisions of Delhi High Court in cases of N.K. Parwanda (supra) and Dr. K.C. Verma (supra). 10 . It was further submitted that it will not be out of context to reproduce following extracts from decision of Constitution Bench of Supreme Court in case of Padmasundara Rao vs. State of Tamil Nadu (2002) 1 76 CTR (SC) 1 4 : (2002) 255 ITR 1 47 (SC) : "Courts should not place reliance on decisions without discussing as to how factual situation fits in with fact situation of decision on which reliance is placed. There is always peril in treating words of speech or judgment as though they are words in legislative enactment, and it is to be remembered that judicial utterances are made in setting of facts of particular case, said Lord Morrin in Herrington vs. British Railways Board ( 1 972) 2 WLR 537 (HL). Circumstantial flexibility, one additional or different fact may make world of difference between conclusions in two cases." 11 . It was his submission that based on aforesaid, it is respectfully reiterated that decision of Bombay High Court in case of Shirish Madhukar Dalvi (supra), Karnataka High Court in case of B.M. Reddy (supra) and Special Bench of Tribunal in Smt. Mahesh Kumari Batra s case (supra) cannot be said to be binding precedents. 12. It was also his submission that in any case, decision of Hon ble Karnataka High Court, not being decision of jurisdictional High Court, is not binding on Hon ble Bench as held in following cases : Taylor Instrument Co. (I) Ltd. vs. CIT ( 1 999) 1 53 CTR (Del) 295 : ( 1 998) 232 ITR 77 1 (Del); CIT vs. Thana Electricity Supply Ltd. ( 1 993) 11 2 CTR (Bom) 356 : ( 1 994) 206 ITR 727 (Bom); Consolidated Pneumatic Tool Co. (India) Ltd. vs. CIT ( 1 994) 1 20 CTR (Bom) 22 : ( 1 994) 209 ITR 277, 282 (Bom); Patil Vijay kumar vs. Union of India ( 1 985) 48 CTR (Kar) 4 1 : ( 1 985) 1 5 1 ITR 48, 57 (Kar); Dr. T.P. Kapadia vs. CIT ( 1 973) 87 ITR 5 11 (Mys). 13. It was also stated that decision of jurisdictional Delhi High Court in cases of N.K. Parwanda (supra) and Dr. K.C. Verma (supra) and Special Bench of Tribunal in Motorola Inc. (supra) clearly apply and are binding on this Hon ble Bench. 14. Finally he concluded by saying that on basis of aforesaid, it is emphatically submitted that question referred to this Hon ble Bench must be answered in favour of appellant to hold that defect in notice issued under s. 1 58BC of Act giving less than 1 5 days to assessee to file return affects validity of assessment, leading to annulment thereof. 15. We have carefully heard rival submissions and perused orders of lower authorities and materials available on record and have deliberated upon submissions made by parties and decisions cited at Bar. issue to be decided by us is that whether issue of notice under s. 1 58BC(a) allowing period of less than 1 5 days to submit block return would render order passed in block assessment nullity or irregularity which can be cured. To answer above question, first and foremost question to be decided by us is whether notice issued under s. 1 58BC(a) is jurisdictional notice like notice under s. 1 48 (only on issuance of which power or jurisdiction to proceed with assessment is vested on AO) or is procedural notice like notice under s. 1 43(2) of Act (the jurisdiction to make assessment already is conferred on AO by operation of law and notice is issued in exercise of that jurisdiction). 16. Before proceeding to decide issue, we would like to clarify that issue raised before us relates to person in whose case search under s. 1 32 of Act, has been carried out in contradistinction to non-searched other person referred to in s. 1 58BD of Act. On careful analysis of provisions of Chapter XIV-B of Act, it is discernible that s. 1 58BA provides that notwithstanding anything contained in any provisions of this Act, where after 30th day of June, 1 995 search is initiated under s. 1 32 or books of account, other documents or any assets are requisitioned under s. 1 32A in case of any person, then, AO shall proceed to assess undisclosed income in accordance with provisions of this Chapter. Reading of this provision suggests that this s. 1 58BA empowers AO to assess undisclosed income in accordance with Chapter XIV-B in respect of person in whose case search under s. 1 32 has been conducted. In other words, this section confers jurisdiction in favour of AO to make block assessment in case of searched person. Sec. 1 58BA(2) is charging section; s. 1 58BB provides for computation of undisclosed income for block period; whereas s. 1 58BC provides procedures to be followed for making block assessment. 107 . In this case few facts may be noted. Search under s. 1 32 was conducted at premises of assessee on 1 2th March, 1 999. Notice for framing assessment for block period under s. 1 58BC(a) was issued on 1 2th Oct., 1 999. In said notice assessee was directed to file return within 1days thereafter. assessee actually filed return on 27th Jan., 2000. assessment was framed on 30th April, 200 1 . sum and substance of contention on behalf of counsel and interveners is that since jurisdiction was assumed for framing assessment by issue of notice under s. 1 58BC(a) which gave shorter time than prescribed under Act, such notice is illegal and consequently assessment framed in pursuance to such notice has to be annulled which cannot be equated as irregularity but should be treated as illegality. contention of learned Departmental Representative on other hand is that it is merely irregularity and not illegality so that due to such defect assessment cannot be annulled but AO may be directed to issue fresh notice whereby sufficient time as prescribed under Act may be given to assessee to file return and to frame assessment thereafter. 18 . Chapter XIV-B is code by itself for computation of undisclosed income found as result of search. Sec. 1 58BA prescribes that notwithstanding anything contained in any other provisions of Act where after 30th day of anything contained in any other provisions of Act where after 30th day of June, 1 995 search is initiated under s. 1 32, AO shall proceed to assess undisclosed income in accordance with provisions of this Chapter. Thus jurisdiction to frame assessment flows from provision contained in s. 1 58BA( 1 ) and not by issue of notice under s. 1 58BC(a). Sec. 1 58BC as title suggests is procedure to be adopted for block assessment. Thus it will be incorrect to equate notice issued under s. 1 58BC(a) as akin to notice under s. 1 48. It is true that before framing any assessment, assessing authority is required to assume jurisdiction for such assessment, reassessment etc. In present case of assessment of search cases under Chapter XIV-B jurisdiction flows from s. 1 58BA( 1 ), trigger point for same is conducting search under s. 1 32 and not issue of notice under s. 1 58BC(a). Having once assumed jurisdiction, if there is any defect in notice, it can be considered only as irregularity and not illegality. We are unable to hold that notice under s. 1 48 can be equated with notice under s. 1 58BC(a). Notice under s. 1 48 is issued for reassessment to be framed under s. 1 47 of Act. Provision of s. 1 47 can be invoked once power to frame regular assessment under s. 1 43 has been exhausted. Thus when AO had power to frame assessment under s. 1 43 and after exercising such power if he has reason to believe that any income has escaped assessment he may proceed to make reassessment under s. 1 47 by issue of notice under s. 1 48. Thus prior to issue of notice under s. 1 48, he has to form opinion that income has escaped assessment and by virtue of such opinion formed he reassumes jurisdiction to frame reassessment. Prior to assumption of such jurisdiction AO becomes functus officio to assume office of AO. He has to assume power of reassessment. Such powers cannot be assumed mechanically. Thus it will be incorrect to equate notice under s. 1 58BC(a) as notice under s. 1 48 of Act. Even proviso to s. 1 58BC(a) makes it clear that no notice under s. 1 48 is required to be issued for purpose of proceeding under this Chapter. This allays fear that notice under s. 1 58BC(a) can be equated with that under s. 1 48 of Act. 19. It is true that under s. 1 58BC(a) AO shall issue and serve upon assessee notice requiring him to furnish return for block period within such time not being less than 1 5 days but not more than 45 days. However, it is to be noted that in present case assessee has filed return even beyond period of 45 days. There is no mention in relevant provision of Chapter XIV-B that return which was filed beyond time mentioned in notice, will be treated as invalid and assessment will be completed ex parte. It is to be noted that if time was to be essence of notice, provision would have been to ignore return filed beyond time specified and complete assessment and levy interest as if no return has been filed. Thus it is clear that legislature has contemplated situations in which return is filed beyond time specified. Thus it is clear that it is not intention of legislature to make time in which return is to be filed as essence of notice under s. 1 58BC(a) and AO has authority to accept return filed after specified time. In such situation mentioning of time in. which return is to be filed as within 1days instead of 1 5 days or more is only defect in notice. Thus there is defect in notice insofar as assessee was asked to file return within 1 5 days but for reasons given above, time is not essence of notice under s. 1 58BC(a). assessee filed return much beyond 45 days time and still AO accepted same and proceeded to complete assessment within limitation period prescribed under s. 1 58BE of Act. Such defect can be only irregularity and not illegality. 1 1 . Having noticed relevant provisions of law, let us at this stage ascertain true meaning, which words "nullity", "illegality" and "irregularity" bear in eye of law. nullity results from error which is incurable and, therefore, fatal to proceeding (see Aiyer s Law Terms and Phrases, 6th Edn., p. 485). illegality occurs when there is breach of some provision of law and irregularity, which is usually, amendable, occurs when some error of procedure is committed in course of proceeding (See Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi AIR 1 959 SC 492). When there is contravention of some provision of law, question often arises whether act done in breach of such provision is perforce nullity. If provision is only directory, act done in contravention thereof is manifestly not nullity. However, if provision is couched in mandatory form, prima facie, it would be nullity. Every act done in breach of mandatory provision, however, is not necessarily nullity. In Dhirendra Nath Gorai vs. Sudhir Chandra Ghosh (supra), following passage from decision in Ashutosh Sikdar vs. Behari Lal Kirtania (supra) was cited with approval to bring about distinction between nullity and irregularity :(p. 1 304 of AIR 1 964 SC) ".......... no hard and fast line can be drawn between nullity and irregularity; but this much is clear, that irregularity is deviation from rule of law which does not takeaway foundation or authority for proceeding, or apply to its whole operation, whereas nullity is proceeding that is taken without any foundation for it or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated." What is workable test to distinguish nullity from irregularity ? following passage from decision in Holmes vs. Russell ( 1 84 1 ) 9 Dow 1 487, which provides clue, was cited with approval in Dhirendra Nath (supra) at p. 1 304 : "It is difficult sometimes to distinguish between irregularity and nullity; but safest rule to determine what is irregularity and what is nullity is to see whether party can waive objection; if he can waive it, it amounts to irregularity; if he cannot, it is nullity." waiver, as observed in Dhirendra Nath Gorai vs. Sudhir Chandra Ghosh (supra), is intentional relinquishment of known right. But can objection as to jurisdiction be waived ? Jurisdiction ordinarily means authority to act in matter and not power to do or order act (See Anowar Hussain vs. Ajoy Kumar Mukherjee AIR 1 965 SC 1 65 1 ). There cannot be waiver of objection to jurisdiction, for, consent cannot give jurisdiction where there is none. In Dhirendra Nath (supra), following observations were made in this context (p. 1 305) : "Where Court acts without inherent jurisdiction, party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, directory provision can obviously be waived. But mandatory provision can only be waived if it is not conceived in public interest, but in interest of party that waives it." It would thus appear to be well settled that where authority, who does, not lack inherent jurisdiction, acts in contravention of mandatory provision, it would be open to aggrieved party to waive its objection to such breach if provision is not conceived in public interest but in interest of party waiving it. underlying principle appears to be that everyone has right to waive and to agree to wave advantage of law or rule made solely for benefit and protection of individual in his private capacity, which may be dispensed with without infringing any public right or public policy. In other words, if statutory conditions are inserted simply for security or benefit of party to proceeding and no public interests are involved, such conditions will not be considered as indispensable and either party may waive them without affecting jurisdiction of authority seized of proceeding. 111 . At this juncture it is also relevant to consider decision of Hon ble Supreme Court in case of Guduthur Bros. vs. ITO ( 1 960) 40 ITR 298 (SC). In said case AO issued notice under s. 28( 1 )(a) of Indian IT Act, 1 922 to show cause why penalty should not be imposed for failure to file return in time. AO proceeded to impose penalty without affording hearing. AAC set aside order imposing penalty as defective and directed refund of any penalty that have been recovered. On receipt of AAC order AO issued further notice calling upon assessee and afforded opportunity of being heard. Hon ble Supreme Court held : "As AAC pointed out only to illegality which vitiated proceedings after they were lawfully initiated, notice issued under s. 28( 1 )(a) did not cease to be operative and it was open to ITO to take up matter at point at which illegality supervened and to correct his proceedings. notice under s. 28( 1 )(a) having still to be disposed of, proceedings started after order passed by AAC could be described as during course of assessment proceedings, because action would relate back to time when first notice was issued. ITO had jurisdiction to continue proceedings from stage at which illegality had occurred." 112. It may be stated that at this stage of discussion, we are not concerned with question that issuance or service of notice under s. 1 58BC is mandatory or not before making of block assessment; our concern is under scheme of Chapter XIV-B of Act, whether issuance of notice under s. 1 58BC confers jurisdiction to AO to make block assessment or some other fact. We observed that Hon ble Bombay High Court in Shirish Madhukar Dalvi (supra), Karnataka High Court in B.M. Reddy (supra), Delhi Special Bench of Tribunal in Promain Ltd. (supra) and Amritsar Special Bench of Tribunal in case of Smt. Mahesh Kumari Batra (supra) all have held that jurisdiction to make block assessment, in respect of person in whose case search has been conducted, flows from s. 1 58BA of Act. No decision could be cited before us for proposition that jurisdiction does not flow to AO from s. 1 58BA to proceed for block assessment in case of searched person. Further, Amritsar Special Bench of Tribunal in case of Smt. Mahesh Kumari Batra (supra) has specifically held that in contradistinction to s. 1 58BC of Act, s. 1 58BA bestows jurisdiction on AO to make block assessment in case of searched person and it has also been held that notice under s. 1 58BC(a) is step taken by AO for exercising jurisdiction, which has already been bestowed upon him by virtue of s. 1 58BA, and hence issuance of same does not confer jurisdiction to assess in favour of AO. Thus, notice under s. 1 58BC(a) being issued after acquisition of jurisdiction cannot be equated with that of jurisdictional notice like notice under s. 1 48 of Act. 113 . We find that as per provisions of s. 1 53( 1 ) of Act, assessment under s. 1 43 or s. 1 44 gets time-barred after expiry of two years (twenty-one months in relation to asst. yr. 2004-05 or subsequent assessment years) from end of assessment year in which income was first assessable. So it is observed that as per scheme of IT Act, jurisdiction of AO for making assessment under s. 1 43 or under s. 1 44, in normal circumstances, comes to end with reference to assessment year i n which income was first assessable irrespective of date when notice under s. 1 43(2) was issued or served. In contrast to this, in case of reassessment under s. 1 47, we find that as per provisions of s. 1 53(2), jurisdiction of AO comes to end after expiry of one year or nine months, as case may be, from end of financial year in which notice under s. 1 48 was served. Thus, it is observed that time-limit for making reassessment, i.e., ending of jurisdiction of AO depends upon date of service of notice under s. 1 48 of Act. Thus, it is observed that as per scheme of IT Act, where notice is jurisdictional one, time-limit for completion of assessment, i.e. end of jurisdiction of AO is dependent upon date of service of such notice. Taking cue from this, when we examine provisions of Chapter XIV-B of Act, we find that as per provisions of s. 1 58BE( 1 ) of Act, jurisdiction of AO to make block assessment comes to end with reference to end of month in which last of authorization for search under s. 1 32 or for requisition under s. 1 32A, as case may be, was executed. In other words, ending date of jurisdiction does not depend upon date of service of notice under s. 1 58BC of Act. limitation of jurisdiction to make assessment, i.e., time-limit after which jurisdiction will be ousted, cannot be extended with delay in service of notice under s. 1 58BC of Act. last date of jurisdiction depends upon date of execution of last of authorization for search under s. 1 32 of Act. After taking into account scheme of IT Act, in our considered opinion, had notice under s. 1 58BC would have been jurisdictional one then last date of completion of block assessment i.e. end of jurisdiction of AO in normal circumstances, would have been with reference to service of such notice. 114. In view of above also, we find ourselves in full agreement with decision of Hon ble Bombay High Court in Shirish Madhukar Dalvi s case (supra) and Amritsar Special Bench of Tribunal in case of Smt. Mahesh Kumari Batra (supra) that notice issued under s. 1 58BC is not jurisdictional one and same is procedural one i.e. notice issued after valid acquisition of jurisdiction. 115 . We have thus found that notice under s. 1 58BC in case of person in whose case search under s. 1 32 of Act has been conducted is procedural notice and in instant case dispute relates to defect in such procedural notice. It is too well established to be disputed that notice under s. 1 48 is jurisdictional notice. Thus, in our considered opinion, various decisions cited at bar to effect that where there is no service of valid and proper notice under s. 1 48, jurisdiction to make assessment has not been correctly notice under s. 1 48, jurisdiction to make assessment has not been correctly assumed and consequently, order passed is nullity in eyes of law, are not applicable on facts of instant case which pertains to defect in procedural notice under s. 1 58BC of Act. 116. It was argued before us that proceeding in respect of person who has been searched as well as person in whose respect search has not been conducted (persons covered by s. 1 58BD) both have to be made under s. 1 58BC following same procedure. Hence, it was contended that if it was held that in case of person who has been searched, s. 1 58BA gives jurisdiction moment search is carried out, obviously such jurisdiction cannot be for person in whose case search has not been conducted. jurisdiction of such other person shall obviously come under s. 1 58BC of Act. If that be so, then jurisdiction of person in whose case search has been conducted shall also flow from s. 1 58BC as both have to follow same procedure. It cannot be said or interpreted that jurisdiction in case of person in whose case search has been conducted will flow from s. 1 58BA whereas in case of any other person jurisdiction will flow from s. 1 58BC. In our considered opinion, above proposition is not correct. Simply because assessment has to be made in respect of two different persons by following one and same procedure does not mean that jurisdiction to assess both persons flows from same provision of Act. For example, in case of person in whose case proceeding has been initiated under s. 1 47 by issuance of notice under s. 1 48, procedure of assessment to be followed in his case is same as prescribed under s. 1 43(2) and (3) as in case of original assessment and this fact by itself does not imply that jurisdiction to assess person under s. 1 47 comes to AO from same provision of law as in case of person in respect of which original assessment is being made. 117. Our attention was also invited to decision of jurisdictional High Court in case of Janki Exports International vs. Union of India (supra) for proposition that s. 1 58BD is analogous to s. 1 47 of Act. We are in respectful agreement with said proposition. But, in instant case, we are concerned with case of person in whose case search was conducted and thus, jurisdiction to assess flows to AO from provisions of s. 1 58BA whereas in case of non-searched persons covered by s. 1 58BD jurisdiction is dependent upon satisfaction of AO after taking into account search materials. Thus, said decision is found not applicable in instant case. 118. As consequence of our above view that notice required to be issued under s. 1 58BC in case of searched person is procedural notice issued after acquisition of jurisdiction, we are of opinion that for any curable defect in notice served under s. 1 58BC on person in whose case search under s. 1 32 of Act has been conducted cannot render block assessment proceedings to be null and void. Thus, defect in notice under s. 1 58BC(a), insofar as it did not allow time of 1 5 clear days for filing of block return, in case of such person is curable irregularity and does not make entire assessment proceedings to be null and void. This brings us to remaining part of first question raised before us, which is that such irregularity in notice require proceedings thereafter to be set aside and redone after curing defect or said defect is mere technical defect of no consequence in view of provisions of s. 292B of Act ? 119. We find s. 292B of Act reads as under : "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 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... notice... if such... notice... is in substance and effect in conformity with or according to intent and purpose of this Act." 120. reading of above shows that this section provides that notice shall not be invalid merely because of any mistake, defect or omission, if notice is in substance and effect in conformity with or according to intent and purpose of this Act. This section, thus, covers cases where there is minor breach or lapse, which is technical, or venial in nature in notice served upon assessee. But for such minor or technical mistake, defect or omission if notice is in substance and effect in accordance with intent and purposes of Act then, for such mistake, defect or omission notice shall not be invalid or deemed as invalid. Thus, even without any rectification by AO, if notice is in substance and effect in accordance with Act, same shall not be deemed as invalid merely because of some technical mistake, defect or omission and will not render proceedings taken in pursuance thereof as irregular. 121 . We find that Kerala High Court in P.N. Sasikumar & Ors. vs. CIT ( 1 988) 69 CTR (Ker) 78 : ( 1 988) 1 70 ITR 80 (Ker) after going through statement of objects and reasons, published in Gazette dt. 9th May, 1 973, for Bill No. 34 of 1 973, and CBDT s Circular No. 1 79, dt. 30th Sept., 1 975, held that s. 292B seeks to provide against purely "technical objections without substance" coming in way of validity of assessment proceeding, notice etc. It was further held that fundamental infirmity cannot be called "technical objection" or mere "irregularity" and vital infirmity which touches upon jurisdiction cannot be cured or obliterated by relying on s. 292B of IT Act. 122. It was also observed that in Umashankar Mishra vs. CIT ( 1 982) 29 CTR (MP) 7 1 : ( 1 982) 1 36 ITR 330 (MP), Madhya Pradesh High Court has held that provisions of s. 292B is intended to ensure that inconsequential technicality does not defeat justice. Non-signing of notice is not merely inconsequential technicality within meaning of s. 292B, hence, unsigned notice was not valid. 12 3 . Keeping in view above legal position when we examine provisions of Chapter XIV-B of Act, we find that s. 1 58BC in no uncertain terms requires AO to serve notice to searched person requiring him to furnish return of income for block period within such time not being less than 1 5 days, as may be specified in notice. Legislatures do not enact anything in statute without any intent or purpose. Hence, it cannot be held that statutory provision specified in Act for notice of minimum period of 1 5 days for filing of return is without any intent or purpose. Thus, in our considered opinion notice served under s. 1 58BC allowing period less than statutory specified time period of clear 1 5 days is in breach of specific provision made in this respect in statute and that such defective notice cannot be held to be in substance and effect in conformity with or according to intent of Act. Further, such defect is also not merely inconsequential technicality. When we examine provisions of s. 1 58BFA( 1 ) it is observed that assessee is liable to pay interest for period which is determined with reference to time allowed in notice under s. 1 58BC of Act and thus, short period allowed in notice affects liability of assessee. 124. In circumstances, in our considered view, on service of such defective notice under s. 1 58BC, procedural irregularity has taken place which can be cured by serving valid notice. It has been vehemently argued before us that AO cannot complete block assessment without service of valid notice under s. 1 58BC of Act and we are in full agreement with said proposition. As AO had jurisdiction to make block assessment, and after bestowing of jurisdiction on him, procedural irregularity has taken place, it is open to him to correct procedural irregularity and then complete block assessment. Hence, we also find ourselves in agreement with contention of learned Departmental Representative that in such case assessment should be set aside for being redone de novo from stage where irregularity had occurred and assessment proceedings cannot be declared null and void. 125. Reliance was placed on decision in Motorola Inc. (supra) for submission that illegality in initiating assessment would vitiate entire assessment resulting in assessment being declared as nullity. We find that in said case, Special Bench of Tribunal after considering scheme of IT Act, found that notice under s. 1 42( 1 ) for calling return can be issued within assessment year only and after expiry of assessment year, AO has no jurisdiction to issue notice under s. 1 42( 1 ) for calling return. As notices under s. 1 42( 1 ) were found to be issued after end of relevant assessment year by Tribunal and hence, invalid and therefore, assessment made pursuant thereto were quashed by Tribunal. In our considered opinion, procedural defects are of two types, i.e., curable and non-curable. In said case before Tribunal because of non-issuance of notice within relevant assessment year non-curable defect has taken place. Because of expiry of time-limit i.e. assessment year in that particular case, defect of non-issuance of notice within time cannot be cured. particular case, defect of non-issuance of notice within time cannot be cured. Whereas in instant case, notice under s. 1 58BC was issued within time- limit for making assessment. Undoubtedly, said notice contained defect insofar as it did not allow minimum statutory period for filing return which can be cured by issuing fresh notice. In our considered opinion, as far as possible substantive right should not be allowed to be defeated on account of procedural irregularity which is curable. Thus, above case is found distinguishable on facts. 126. Reliance was placed before us on decision in Dr. K.C. Verma vs. Asstt. CIT (supra) for submission that jurisdiction to assess can be assumed only within four corners of provisions of s. 1 43. We find that in that case it was found that AO s jurisdiction to assess has been ousted because of non- issuance of notice under s. 1 43(2) within period of limitation provided under proviso to s. 1 43(2) of Act. To same effect is decision of Special Bench in case of Raj Kumar Chawla vs. ITO (supra). We find that in case of return filed under s. 1 39, AO has option to proceed to make assessment under s. 1 43(3) and when he exercises such option, then condition precedent is that he has to serve notice under s. 1 43(2) within period of 1 2 months from end of month in which return has been filed. We find that there is no such option with AO under s. 1 58BC in case of person in whose case search has been conducted. Further, in contradistinction of facts of above cases, in instant case fact is that notice under s. 1 58BC was served on assessee within period of limitation for serving such notice. Service of notice within period of limitation is not in dispute in case before us. dispute in present case is that such notice is defective inasmuch as it does not allow minimum stipulated period for filing return which was not in dispute on facts of above case. In above case non-curable defect has taken place because of lapse of limitation whereas in present case notice was issued within time with some curable defect. Hence, above cited cases are distinguishable on facts. 12 7 . Reliance was placed on decision of Delhi Bench of Tribunal in case of N.K. Parawanda vs. Dy. CIT in IT Appeal No. 1 29 (Del) (supra) and also on other decisions for proposition that service of notice under s. 1 58BC is condition precedent to assess undisclosed income. It affects jurisdiction of AO. Consequently, if assessment is made without service of such notice then such assessment would be without jurisdiction and null and void. We are in full agreement with above proposition. But, in instant case, facts are different inasmuch as in instant case we find that notice under s. 1 58BC was served on assessee within period of limitation, of course with some defect therein as stated above. instant case is not case where no notice at all under s. 1 58BC was served upon assessee before making block assessment within period of limitation. question that arises here is that when there is defect in notice served under s. 1 58BC, can it be held that it is case of no notice or it is case of notice with some defect. We find that no authority has been cited before us to show that defect in procedural notice served within period of limitation will be no notice in eyes of law. We have already held that notice under s. 1 58BC(a) in instant case is not jurisdictional notice and hence decisions cited to effect that defect in jurisdictional notice is case of no notice in eyes of law are not relevant here. On other hand we find that when there was defect in procedural notice, if defect is curable then proceeding subsequent to stage when irregularity has occurred will only be invalid and proceeding is to be completed again from stage of irregularity after curing defect. Thus, in our considered opinion aforesaid decisions are found distinguishable on facts. 12 8 . In view of discussion made hereinabove, we set aside impugned order and restore matter to file of AO for passing order de novo after issuing valid notice under s. 1 58BC in accordance with law. 129. In view of our above decision to set aside entire assessment for reframing of same afresh as per law, at this stage we refrain from adjudicating other issues raised in appeals under consideration on merits. 130. In result, appeals filed by assessee are allowed for statistical purposes. *** SMT. KRISHNA VERMA v. ASSISTANT COMMISSIONER OF INCOME TAX