9911796707
TMI Blog1989 (5) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... see did not file any return under sec. 139(1) for the assessment year 1976-77. No notice under section 139(2) was issued to the assessee. On29-3-1979, the ITO issued a notice under sec. 148 by a registered letter. This was served on the assessee on3-4-79. After the issue of notice under sec. 148 and before its service, the assessee filed return of income on30-3-79, purporting to be a return under section 139(4). The ITO passed the order of assessment on28-2-1983. The assessee's contention was that the order could not have been passed beyond29-3-80in view of the provisions contained in sec. 153(1)(c) of the Income-tax Act. As the order of assessment has been passed beyond29-3-80, the assessee challenged the same, as having been passed after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It was also submitted that once notice under sec. 148 was issued by the ITO, it shut on the right of the assessee to file the return under sec. 139(4). Relying on the Supreme Court judgment in the case of R.K. Upadhyaya v. Shanabhai P. Patel [1987] 166 ITR 163, it was submitted that once a notice under sec. 148 was issued within the period of limitation, jurisdiction became vested in the ITO to proceed to make assessment. The submission, therefore, was that the ITO had validly invoked jurisdiction in this case and he could not be divested of his jurisdiction by a subsequent event, under which the assessee filed the return under sec. 139(4) on30-3-1979. Regarding the Supreme Court decision in the case of Kundan Lal Behari Lal it was submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s invalid and bad in law. This plea has no legs to stand upon in the light of the Supreme Court decision in the case of R.K. Upadhyaya. 7. The assessee has relied upon the decision in the case of Kundan Lal Behari Lal. The facts of that case were, that the assessee had filed his returns of wealth for the assessment years 1964-65 to 1970-71 on2-12-71. As the returns were not filed within the time allowed under sec. 14(1) of the Wealth-tax Act, the assessee applied to the CWT on 3-12-71 for waiver of penalty for filing the returns late, as provided under section 18(2A) of the WT Act. On6-12-1971, he was served with a set of 6 notices under sec. 17 all dated29-11-71, issued by the WTO. The returns were accepted and assessments were made. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d' was not used in the narrow sense of 'sent' but that the said expression had received, before the Indian Income-tax (Amendment) Act, 1959, a clear judicial interpretation. Subba Rao J, as he then was, dealing with the purpose which the word 'issue' was intended to serve, after referring to Sri Niwas v. ITO cited in the judgment under attack and aBombaydecision, observed at page 108, the intention would be effectuated if the wider meaning is given to the expression 'issued'. The dictionary meaning of the expression 'issued' takes in the entire process of sending notices as well as service thereof. The said word used in sec. 34(1) of the Act itself was interpreted by courts to mean 'served'." 8. From the above, it may be seen that the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the assessment. Respectfully following the latest decision of the Supreme Court, which was rendered in the context of the Income-tax Act, 1961, with which we are concerned in this appeal, we hold that once the notice had been issued by the ITO on29-3-79, he had validly assumed the jurisdiction. No subsequent event like the filing of return by the assessee on30-3-1979would divest the ITO of his jurisdiction. If the ITO had validly invoked the jurisdiction under sec. 148, he could pass the order of assessment up to31-3-1984. The order of assessment was, in fact, passed in February 1983, and was, therefore, within time. The ITO treated the return filed by the assessee on30-3-1979as a return deemed to have been filed in response to notice u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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