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TMI Blog1984 (2) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... assessments' as defined in section 2(40) of the Act. The facts in this regard, the rival submissions and our conclusion thereon are set out below. 2. In respect of the assessments under appeal, the assessee did not file the returns of income within the period specified under section 139(4). The ITO, therefore, issued notices under section 148 of the Act to assess the escaped income under the provisions of section 147(a). The appellant did not file the returns of income even in respect of the notices issued to him under section 148. The ITO, therefore, completed all these assessments ex parte under section 144. Subsequently, the assessments were reopened in response to applications filed under section 146 of the Act on 5-7-1979. Even the reopened assessments for these years were again completed under section 144. There were no further petitions under section 146 against these assessments. For all practical purposes, these assessments appear to have become final except in regard to the issues raised in these appeals in respect of levy of interest under sections 139(8) and 215. While completing the assessments ex parte for these years, the ITO levied interest under section 139(8) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Act, 1922 ('the 1922 Act') when specifically no appeals were provided therein against such an order, on the ground that the assessee denied his liability to be assessed under the 1922 Act under sub-section (1) of section 30 of that Act. Their Lordships held in that case that when the assessee denied his liability to be assessed under section 18A(1), he would in effect be denying his liability to be assessed under section 30(1) and, therefore, the orders under sections 18A(6) and 18A(8) would become appealable orders. The AAC, following this decision, held that the interest levied in this case under sections 139(8) and 215 of the 1961 Act would be eligible for being agitated in appeal by the assessee and proceeded to dispose of the claims on merits as under. 4. We would briefly summarise the arguments of the AAC in the following manner : All the decisions relied upon by the assessee were decided on technical grounds. No attempt was made either by the learned representative or in the decisions cited to make out any fundamental difference between a regular assessment as defined in section 2(40) and an assessment or reassessment under section 147. Section 147 is only an ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were cancelled originally, the fresh assessments that were made subsequently could only be assessments under section 143(3) or section 144 read with section 146 and, therefore, assumed the character of regular assessments. He, therefore, held that the assessments in question, even though they were initiated under the provisions of section 147, were in effect regular assessments as defined in section 2(40) and as such the provisions of section 139(8) and section 215 would be attracted to them, thereby justifying the levy of interest under these sections by the ITO. He, accordingly, dismissed the appeals of the assessee in this behalf. Aggrieved with the same, the assessee has filed these appeals before us. 6. Shri Dewani, the learned counsel for the assessee, made the following submissions before us : The learned AAC also concedes up to a particular stage in his conclusions that the assessments made in this case could not be considered to be regular assessments as defined in section 2(40) as they were technically assessments made under section 147. The learned AAC, according to him, completely misdirected himself in holding further, that once the assessments completed under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under section 147 the same as an assessment under section 143 or section 144. " He also referred to the distinction noticed by the Bombay High Court as between assessments under section 143 or 144 and those under section 147 as regards the time limit for their completion specified in section 153 of the Act. The Bombay High Court noticed that different time limits were prescribed for assessment under sections 143 and 144 and those under section 147 as per section 153. He also drew our attention to the distinction highlighted by the Bombay High Court in the provisions regarding appeals contained in clauses (c) and (e), respectively, of section 246(1) of the Act. He also drew our attention to the fact that the Bombay High Court further stressed the distinction in this behalf by referring to section 263(2) of the Act, which specifically prohibits a Commissioner having revisionary jurisdiction in respect of orders of reassessment under section 147. Finally, he also relied on the following passage in the headnote of the decision : " The words 'regular assessment' have now been specifically defined by the Legislature in section 2(40) of the 1961 Act. Under the accepted canons of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en according to section 148, once a notice has been served in pursuance thereof, sections 143 and 144 would still be applicable to the proceedings and in that sense also, the assessments completed would be assessments under sections 143 and 144 read with section 147. He relied on Deviprasad Kejriwal's case and Kashiram Tea Industries Ltd. v. ITO [1981] 132 ITR 783 (Cal.) in support of his viewpoint. In Deviprasad Kejriwal's case, the Bombay High Court, while deciding the question in regard to levy of interest under section 18A(6) and penalty under section 18A(9) held that the words 'regular assessment' in section 18A(9) would cover cases of reassessment under section 34(1). In Kashiram Tea Industries Ltd.'s case, the Calcutta High Court, while interpreting the provisions of section 273, held that the ITO had jurisdiction, in the course of reassessment proceedings, to initiate proceedings under section 273 as reassessment proceedings would amount to a 'regular assessment'. They held so because the word 'assessment' has been defined to mean 'reassessment' and the words 'regular assessment' have not been defined to mean an initial assessment. The learned departmental representative, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally defined in section 2(40) whereas, similar words occurring in section 18A(9) of the 1922 Act had not been defined in that Act. They further held that the matter has to be considered in the light of the fact that at several places, the word 'assessment' under section 143 or section 144 has been used in contradistinction with reassessment under section 147. As regards the Calcutta High Court decision in Kashiram Tea Industries Ltd.'s case, it would appear that the same was not adverted to before the Bombay High Court. A similar view was taken by the Madras High Court in M.RM.M.M. N. Natarajan Chettiar v. ITO [1961] 42 ITR 29 inasmuch as their Lordships held that there was no provision to increase the interest chargeable under section 18A in the course of reassessment proceedings under section 34 of the 1922 Act. The only dissenting decision is that of the Calcutta High Court in Kashiram Tea Industries Ltd.'s case. The overwhelming view in this regard of the various High Courts appears to be in favour of treating an assessment made under section 147 to be different from a regular assessment. Moreover, the words 'regular assessment' have been defined in section 2(40) whereas, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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