9911796707
TMI Blog1984 (3) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(3) read with section 144B of the Income-tax Act." 2. In order to appreciate the facts it would be necessary to give certain basic facts in this case. The assessee is a private limited company and its accounting year ended on30-6-1977. The assessee had filed a return declaring loss of Rs. 3,94,618 on30-8-1979. The ITO after examining the accounts proposed to make certain additions and made the draft assessment order which was sent to the IAC along with the objections of the assessee on2-3-1981. The assessee filed a revised return on3-3-1981claiming further loss of Rs. 9,04,290 incurred in certain consignments sent toWest Germany. While making the assessment on2-9-1981, the ITO did not take into consideration this revised return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that under section 144B the ITO could make only one draft order of assessment and he has no power to issue more than one draft order. In that case it was the plea of the revenue that the ITO could issue more than one draft assessment order under section 144B but the same was not accepted by the High Court. The High Court has also considered the question of limitation with reference to section 153 of the Act, where it is laid down that a period not exceeding 180 days is permitted to the revenue to complete an assessment in addition to the normal period when no action under section 144B is taken by the department. The departmental representative, therefore, contended that it was not open to the ITO to take cognizance of the revised return. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable. 6. The learned counsel for the assessee, on the other hand, submitted that the provisions of section 139 of the Act was clear. It provided for the filing of a revised return till the assessment was pending. He submitted that the passing of a draft order and sending it to the IAC cannot mean that the assessment had been completed and in case there is an objection by the assessee, that has to be taken into consideration and the assessment has to be made in accordance with the instructions issued by the IAC. He, however, submitted that till any such final order is passed, the assessment is pending and the right of the assessee to file a revised return cannot be taken away merely because the ITO has chosen to send the draft assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration by the ITO. 8. We have carefully considered the contentions of the departmental representative as well as raised by the counsel for the assessee. The position under the normal law is clear. Under section 139 a revised return can be filed by an assessee where he discovers any omission or any wrong statement therein at any time before the assessment is made. Under section 139(4) any person who has not furnished a return within the time allowed to him under sub-section (1) or sub-section (2) may before that assessment is made furnish a return before the end of the specified period, which for this assessment year would be two years from the end of the assessment year. In the present case this period would have ended on31-3-1981a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the passing of the draft assessment order and till that time the assessment is pending. In these circumstances the assessee can certainly file a revised return if the conditions under section 139(5) are fulfilled. It may also be mentioned that where such a revised return is filed, section 153(1)(c) extends the period of limitation and the assessment can be made up to the period of one year from the date of the filing of the revised return. This extended limitation period even goes beyond the period of 180 days provided for the orders covered under section 144B. In view, of the legal position, the return filed by the assessee has to be taken into consideration by the ITO and has to be disposed of on merits. Its non-consideration is not jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal. It would, therefore, not be correct to extend the observations in that case to all the cases and for all the purposes. 13. The point whether an assessment had been made or is pending, one has to ask only one question ' whether an order under section 143(3) or 144 of the Act has been passed ? '. A further question which can be asked is whether the assessee can file an appeal against the draft order passed by the ITO. The answer would be obviously in the negative. The various provisions make it clear that the draft order is a stage before the completion of the assessment and it cannot be considered as the assessment order itself. It is also clear that though the IAC is an officer providing guidance to the ITO, he is not the off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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