9911796707
TMI Blog2000 (11) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... mention whether it was filed under s. 139(4) or under s. 148. No assessment could be framed by 31st March, 1991. Again, the notice under s. 148 was issued on 30th March, 1992 after recording the reasons and the assessment was also completed on that very date. The said assessment was challenged before the CIT(A) on the ground that such assessment was barred by period of limitation. The said contention of the assessee was accepted by the CIT(A) after following the decision of Tribunal Pune Bench in ITA No. 1329/Pn/1992, dt. 25th Jan., 1996. Aggrieved by the same, the Revenue is in appeal before the Tribunal. 3. The learned Departmental Representative, on behalf of Revenue, has vehemently opposed the order of CIT(A) by contending that the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be made to the decision of Supreme Court in the case of Ganshyamdas vs. Regional Asstt. CST (1964) 51 ITR 557 (SC). A proceeding can be said to be pending when it is initiated, but not terminated by any order. The assessment proceedings are initiated either by filing of the return or by issue of notice and the same are terminated by the order of assessment. Therefore, after filing of valid return, the assessment proceedings remain pending till the assessment is finalised. Therefore, when no assessment could be made by AO for any reason, it was held that no notice could be issued for reopening the assessment even though period of limitation for issuing such notice had not expired. To modify this legal position, the provisions in cl. (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Sec. 148(2) says that such reason should be recorded prior to the issue of notice. So, it is incumbent upon the AO to record such reasons to demonstrate that the conditions provided by the legislature in cl. (b) of Expln. 2 were satisfied before issuing the notice. 6. The reasons recorded by the AO vide order-sheet dt. 30th March 1992, are being reproduced as under: "In this case, for the first time, the assessee filed return of income on 24th March, 1991. Earlier on 26th Sept., 1988, notice under s. 148 was issued. But in response to this notice, the assessee did not file return. As per this notice the assessee was asked to file the return of income within 30 days. As the assessee did not file return within this time, the return fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and payment of Rs. 11,200 was claimed twice and, therefore, the return filed on 24th March, 1991, did not show the true and correct income of the assessee. Therefore, it is apparent that AO was satisfied about existence of both the conditions as provided by the legislature in the amended provisions of cl. (b) of Expln. 2 to s. 147. Admittedly, the notice was issued in time. 7. In view of the above discussion, it cannot be said that assessment was barred by period of limitation. Accordingly, the order of CIT(A) cannot be upheld. Since the CIT(A) had allowed the appeal on the ground of limitation, she had no occasion to decide the appeal on merit. Accordingly, the order of CIT(A) is set aside and the matter is restored to the file of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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