2000 (2) TMI 4 - SC - Income Tax

Validity of order of assessment u/s 147 - return filed u/s 139 and refund application was pending to be processed - Along with the return assessee has filed an application u/s 237 for refund of tax - Scope of the noting recorded by the AO - Held that - it could not be said that the ITO gave finality to the refund since no refund is granted either in the hands of the trust or in the hands of the beneficiaries. It is an inconclusive note where the ITO left the matter at the stage of consideration even with regard to refund in the hands of the beneficiaries. This note was also not communicated to the trustees. In any case if it is an order it would be appealable under s. 249 of the Act. Since period of limitation starts from the date of intimation of such an order it is imperative that such an order be communicated to the assessee. Had the ITO passed any final order it would have been communicated to the assessee within a reasonable period. By merely recording that in his opinion no credit for tax deducted at source is to be allowed the ITO cannot be said to have closed the proceedings finally. During the pendency of the return filed under s. 139 of the Act along with refund application under s. 237 of the Act action could not have been taken under s. 147/148. Decided against the revenue.

Issues Involved:
1. Validity of the assessment made by the ITO under Section 143(3) read with Section 147 of the IT Act, 1961.
2. Whether the return filed by the trustees on 2nd April 1964, along with the refund application, was filed under Section 139(1) of the IT Act.
3. Whether the proceedings initiated under Section 147 of the Act were valid if the return filed on 2nd April 1964, was still pending.
4. Whether the note recorded by the ITO on 10th November 1965, terminated the assessment proceedings.

Detailed Analysis:

1. Validity of the Assessment under Section 143(3) read with Section 147:
The primary issue was whether the assessment made by the ITO for the assessment year 1962-63 under Section 143(3) read with Section 147 of the IT Act, 1961, was valid. The trustees of the Nizam's Second Supplemental Family Trust had filed an income-tax return along with a refund application on 2nd April 1964. The ITO did not respond to this application, leading the trustees to send reminders. Eventually, the ITO issued a notice under Section 148 requiring a return for the assessment year 1962-63. The trustees filed the return, which the ITO accepted, but the trustees objected, claiming the initial return was still pending, making the Section 147 proceedings invalid. The AAC and the Judicial Member of the Tribunal agreed that the initial return was valid and pending, thus invalidating the reassessment under Section 147. The High Court, however, held that the ITO's note on 10th November 1965, terminated the proceedings, making the reassessment valid.

2. Return Filed Under Section 139(1):
The Tribunal had to determine if the return filed on 2nd April 1964, along with the refund application, was under Section 139(1) of the IT Act. The Judicial Member held that the return was valid under Section 139, and the assessment proceedings were not terminated by the ITO's note. The Accountant Member disagreed, stating the return did not commence assessment proceedings. The third member of the Tribunal agreed with the Judicial Member, confirming the return was valid under Section 139.

3. Validity of Proceedings under Section 147:
The trustees argued that the proceedings under Section 147 were invalid since the return filed on 2nd April 1964, was still pending. The Supreme Court held that unless the return of income already filed is disposed of, notice for reassessment under Section 148 cannot be issued. The Court noted that the note recorded by the ITO on 10th November 1965, was not communicated to the trustees until 16th July 1970, and thus did not terminate the assessment proceedings.

4. Note Recorded by the ITO on 10th November 1965:
The Supreme Court examined whether the note recorded by the ITO on 10th November 1965, constituted an order terminating the assessment proceedings. The Court found that the note was an internal endorsement and did not indicate a final rejection of the refund application. The Court emphasized that for an order to be effective, it must be communicated to the assessee. The note did not meet this requirement, and thus the assessment proceedings were still pending when the ITO initiated action under Section 147.

Conclusion:
The Supreme Court concluded that the assessment proceedings initiated under Section 147/148 were invalid since the return filed on 2nd April 1964, along with the refund application, was still pending. The note recorded by the ITO on 10th November 1965, did not terminate the assessment proceedings as it was not communicated to the trustees. The appeal was allowed with costs, and the reassessment proceedings were declared invalid.

← Previous Next →