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TMI Blog2010 (11) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. M/s Luxco Electronics, Allahabad (the Assessee) manufactures and sells loudspeaker and its electronic components. It filed its return for the assessment year (AY) 1979-80 on 29-8-1979 before the Income-tax Officer, A Ward, SIC Allahabad (the ITO). He was the Assessing Officer for the assessee. 3. The Commissioner of Income-tax (the Commissioner) had earlier issued a notification dated 16-11-1979 conferring concurrent jurisdiction under section 125A of the Act on the Inspecting Assistant Commissioner Allahabad (IAC), with the ITO. 4. The ITO by its order dated 1-8-1981 referred the case for the special audit under section 142(2A) of the Act. The audit report was received on 16-1-1982. 5. Thereafter, as the variat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. It was partly allowed on 31-8-1987 and three questions were referred. Questions referred 11. We have heard Sri. R.K. Upadhyay for the Department and Sri R.R. Agrawal, for the assessee. The Tribunal has referred the following three questions for opinion of the Court: 1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the provisions of section 144B of the Income-tax Act, 1961 were not applicable? 2. If answer to the aforesaid question is in the affirmative whether the draft assessment order in that event would become final assessment order? 3. Whether, on the facts and in the circumstances of the case, the assessment order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the assessee. The counsel for the parties agree that in view of this, the answer to the question-2 has becomes academic and it is not necessary to express any opinion on the same. 19. Accordingly, we refrain from answering it. 3rd Question: Assessment order-not barred by time 20. The counsel for the assessee submits that: (i) The limitation for making assessment is provided in section 153(1)(a)(iii) and is two years; (ii) Five heads have been indicated in Explanation 1 of section 153 of the Act by (i) to (v) and for which the period mentioned therein can be excluded, while calculating limitation; (iii) In between each head, the word 'or' and not the word 'and' is used; (iv) This i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued direction on 22-1-1983. Thereafter the assessment order was passed on 28-1-1983. In view of section 153 Explanation 1 (v) of the Act, the period from 27-8-1982 to 22-1-1983 was to be excluded. 26. There is no dispute that in case the periods under section 153 Explanation 1 (iii) as well as section 153(1)(v) were excluded then the assessment order passed on 28-1-1983 was within time. However, if time only under one head was excluded then the assessment order was barred by time. 27. In section 153 Explanation 1, the word 'or' is used in between the five heads merely to indicate that even if one existed in isolation, then the time was to be excluded. This did not mean that if a case was covered under two or more than two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 3 are answered in negative, in favour of the Department and against the assessee. 32. Let our opinion be sent to the Tribunal for passing the appropriate consequential order. 1. 153. The relevant part of section 153 of the Act is as follows: Time limit for completion of assessments and reassessments. "(1) No order of assessment shall be made under section 143 or section 144 at any time after:- (a) the expiry of - ** ** ** (iii) two years from the end of the assessment year in which the income was first assessable, where such assessment year is an assessment year commencing on or after the 1st day of April, 1969; or Explanation 1.:- In computing the period of limitation for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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