ORDER
B.L. Khatri, A.M.
This is an appeal by the assessee against the order of Commissioner (Appeals), Udaipur, for assessment year 1994-95. The appellant agitated on the ground that the assessing officer erred in passing the assessment order on the basis of non est return of income filed on 17-2-1997, which ought to have been annulled by Commissioner (Appeals). The Commissioner (Appeals) grossly erred in holding that the assessment completed on the basis of said return of income was valid.
2. The brief facts of the case are that the due date for filing the return was on 31-8-1994. The return can be filed under section 139(4) on 31-3-1996. Notice under section 142(l)(i) was issued on 9-3-1995, and the return was filed on 17-2-1997. The assessment was completed on 31-3-1997. In this case no return of income by 31-8-1994, was filed and thereafter by 31-3-1996, the return was filed.
3. The Income Tax Officer, Ward-1, Udaipur, issued notice under section 142(l)(i) of the Act dated 9-3-1995, calling for return of income to be filed on or before 31-3-1995, but the notice was served on 21-3-1995.
4. Thereafter, another notice under section 142(l)(ii) of the Act, dated 31-1-1997, fixing the date of hearing on 18-2-1997, was issued to produce complete books of account relevant for assessment year 1994-95.
5. Ultimately, the return of income was filed on 17-2-1997, declaring income of Rs. 40,920 and net agricultural income of Rs. 7,000.
6. Accordingly, the assessment of income was completed on 26-3-1997, under section 143(3)/145(2)/144 of the Act by the assessing officer.
7. The return of income for assessment year 1994-95 was filed on 17-2-1997, which was claimed by the appellant to be beyond the time prescribed under sections 139(1) and 139(4) of the Act. On the basis of this, the appellant contended before the Commissioner (Appeals) that the return filed was non est in the eye of law. Therefore, the assessment framed by the assessing officer on such return was not valid. After distinguishing various case law relied upon by the learned Authorised Representative, the Commissioner (Appeals) held that the assessing officer issued notice under section 142(1)(i) on 9-3-1995, requiring the appellant to file return of income and the said notice was properly served upon the appellant, but the appellant did not comply with the said notice by filing return and thereafter further notice under section 142(1)(ii) of the Act was issued on 31-1-1997, calling for the books of account for the relevant assessment year, and it is only after that the assessee filed return of income on 17-2-1997, and the assessing officer entertained the said return in compliance with notice under section 142(1)(i) which was also apparent from the proceedings taken thereafter. There is no time-limit mentioned in section 142(1)(i) of the Act for filing the return or except otherwise provided in other sections of the Income Tax Act. The assessing officer has also brought to the notice of the Commissioner (Appeals) through his remand report that the appellant in his letter dated 25-2-1997, stated that the return had been filed in response to notice under section 142(1). The said letter reads as under :
'That for assessment year 1994-95, in compliance to notice under section 142(1) of Income Tax Act, return of income was filed declaring total income of Rs. 47,920 and tax and interest payable therein, i.e., Rs. 4,100 duly deposited on 17-2-1997, i.e., on the same day.'
In view of the above facts, the Commissioner (Appeals) held that the return filed on 17-2-1997, was not non est but it was a return filed in compliance to notice under section 142(1)(i) of the Act.
8. The next contention of the appellant before the Commissioner (Appeals) relates to the waiver of notice under section 143(2) of the Act. The assessing officer has reported that it was with the consent of the appellant that no formal statutory printed notice was issued but the assessee was given queries vide order-sheet entry dated 18-2-1997, which are the same as are being normally raised by issue of notice under section 143(2). The appellant has also complied with various queries raised on 18-2-1997. Thereafter, the appellant mentioned in his letters dated 14th and 25-3-1997, that in compliance to the said queries of the order-sheet he has filed the details/particulars. From the conduct of the appellant, the assessing officer has waived the notice and such waiver has been confirmed by a number of judicial pronouncements which the assessing officer has also reported in his remand report. The fact remains that there is a clear consent of the appellant for the compliance of the requirement of the order-sheet entry and thus there was no necessity of issue of formal notice under section 143(2). Once the party has waived an irregularity, he cannot afterwards complain against it as has been held in the case of Marsh v. Marsh (1945) AC 217. Hence, the objection of the appellant on this score was also overruled by the Commissioner (Appeals).
9. The next point raised was against the framing of assessment under section 143(3) read with section 144/115. The appellant did not comply with the various requirements relating to his business income and for agricultural income and, therefore, provisions of section 144 were resorted to and since no books of account were maintained by the appellant provisions of section 145 were considered applicable. The nomenclature used in the assessment order is not suggestive to the validity of the assessment order and even if a wrong section has been quoted it is a procedural omission but certainly not fatal to the very essence of the action to vitiate the assessment framed. No undue emphasise or importance can be given to the section mentioned in the assessment year. Rather, a complete and composite approach to the order of assessment vis-a-vis relevant sections do not violate the principle of natural justice. Therefore, these objections of the counsel for the appellant are not considered substantial and relevant to decide about the validity of the assessment framed. The assessment can also be framed under section 144(l)(b) of the Act for non-compliance of notice under section 142(l). Ultimately, the Commissioner (Appeals) after having considered the objections of the appellant on merit restored the case to the file of the assessing officer for providing opportunity of being heard to the appellant and to frame the assessment de novo after considering all materials and explanation of the appellant.
10. The learned Authorised Representative contended that keeping in view the facts of the case the order passed under section 143(3)/145(2)/144 of the Act is not valid in the eye of law. It was also submitted that the Income Tax Act laid down different procedure for framing assessment under section 143(3). In case where the assessing officer desires, that the return so filed is required to be scrutinised before passing an order' under section 143(3), he is required to issue notice under section 143(2) of the Act but in fact no such notice has been issued by the assessing officer.
10.1 Section 144 of the Act empowers the assessing officer to make best judgment assessment if the assessee fails to comply with the notice issued under section 142(l)(i) of the Act. Ultimately, the learned Authorised Representative contended that a perusal of assessment order at p. 1, para 1, p. 2, para 1, p. 6, para 6, p. 7 bottom computation and middle part of p. 8 reveals that the assessment had been framed under section 143(3) on non est return. Therefore, the assessment order passed by the assessing officer is not valid in the eye of law.
11. We have considered the rival submissions. We find that this is a case for assessment year 1994-95. The due date for filing the return under section 139(l) was 31-8-1994, whereas the return was filed on 17-2-1997. No return of income was filed by the due date, i.e., 31-8-1994. The assessing officer issued notice under section 142(l)(i) of the Act dated 9-3-1996, asking for return to be filed on or before 21-3-1995. In response to the notice, no return was filed. We agree with the view of the learned Commissioner (Appeals) that there is no time-limit for requiring the assessee to file return in compliance with the notice under section 142(l)(i) of the Act except otherwise provided in section 163(l)(a) of the Act. Under this section, the return can be filed before completion of assessment within two years from the end of the assessment year in which the return was first assessable, that is, the return can be filed in compliance with the notice under section 142(l)(i) of the Act upto 31-3-1997. In this case the return has been filed on 17-2-1997. This is a valid return in the eye of law as held by the Commissioner (Appeals). Secondly, we are of the opinion that the assessing officer has though made reference under, section 143(3)/145(2)/144 of the Act but we concur with the view of the learned Authorised Representative that in fact this is an assessment framed under section 143(3) of the Act irrespective of the fact of any other sections mentioned by him. We have already held that a valid return has been filed by the assessee on 17-2-1997, which could have been filed even by 31-3-1997. As regards the issue of notice under section 143(2) of the Act before completion of assessment under section 143(3) of the Act we agree with the view of the Commissioner (Appeals) that the appellant has waived formal issue of notice under section 143(2). Various details and particulars were called for through order-sheet entry dated 18-2-1997, which are the same as are being normally raised by issue of notice under section 143(2) of the Act. There was no necessity of issue of formal notice under section 143(2); once the party has waived an irregularity he cannot afterwards complain about it. We are of the opinion that non-issue of formal notice under section 143(2) can lead to an irregularity and not to an invalidity of the order. We find that the Commissioner (Appeals) had rightly set aside the assessment order framed by the assessing officer and restored the same to him for providing opportunity of being heard for making the assessment de novo after considering all material facts and explanation of the appellant.
12. In the result, the appeal is dismissed.