9911796707
TMI Blog1995 (8) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... on was upto 31st March, 1990. The AO had fixed hearing before him. 26th March, 1990, was the date of the last hearing. Thereafter, the assessment order was passed. However, it bears no date. The assessment order was served on the assessee on 4th May, 1990. The notice of demand dated 22nd March, 1990, was also served on the assessee. In the assessment, certain additions and disallowances were made. 4. Aggrieved by the order of assessment, the assessee had preferred an appeal before the CIT (A). When the appeal came up for hearing, the assessee had raised a preliminary objection against the validity of the notice of demand. It was submitted that hearing took place up to 26th March, 1990, and the order of assessment was served on 4th May, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile framing fresh assessment order, the ACIT will give specific opportunity to the appellant for explaining its case. Before any additions are made, specific show-cause notice should also be given to the appellant. For statistical purposes, the appeal is treated as allowed." 5. Dissatisfied by the above order, the assessee has come up in appeal before the Tribunal. The only ground raised by the assessee reads, "that the ld. CIT (A) has erred in issuing directions which are bad in law". 6. The ld. counsel for the assessee has submitted that since notice of demand purports to have been prepared before completion of the assessment, the same was invalid and non est in law. This being so, the CIT (A) after holding that the said demand notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, that the assessment order has to be passed before the notice of demand is issued. A demand is a process for recovery of tax after assessment proceedings have been completed. The purpose of a notice of demand is to bring to the attention of and demand from the assessee the amount of tax including interest and other items due from the assessee under the order of assessment. In taking this view, we stand fortified from the following two decisions of the High Court of Calcutta :--- (i) CIT v. Karanani Industrial Bank Ltd. [1978] 113 ITR 380 (Cal.); (ii) CIT v. Kailasho Devi Burman [1978] 115 ITR 732 (Cal.). 10. The contention advanced on behalf of the assessee that the assessment order should be served along with a notice of demand, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was filed against the order of assessment. In the appeal filed before the CIT (A), the assessee had raised ten grounds. All the grounds are directed against the findings arrived at in the assessment order. Moreover, in the case before us it is the accepted position that notice of demand was served on the assessee. The fact that the notice of demand is found to be improper or invalid would not, in our opinion, make the appeal incompetent or premature. 12. Section 249 of the Act does not specify the order against which an appeal can be filed. It only provides for the form of appeal and the limitation for filing of the appeals. Section 249(2)(b) provides that the appeal shall be presented within 30 days, where the appeal relates to any ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved under section 154 of the Act was rejected. 15. The material facts have already been stated above in ITA No. 72 /Ind./ 1991. On receipt of the order of the CIT (A) dated 9th November, 1990, the assessee had moved an application dated 21st December 1990, under section 154 of the Act stating that the appeal filed by the assessee was premature, because the notice of demand, which was served on the assessee was not based on the assessment order, which was served on 4th May, 1990. The contention of the assessee found favour with the CIT (A). But instead of treating the appeal as premature and not maintainable, the assessment order was inadvertently set aside. It was, therefore, prayed that the order setting aside the assessment may be with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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