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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 ..... assessee. Limitation for making assessment - Held that:- In the present case, the period falling under both the heads was different. They were not overlapping with each other and as such the period when the case was referred under section 142(2A) till receipt of audit report as well as, when the draft order under section 144B was received by the Assessee (when it was served on the assessee) till the IAC issued direction, was to be exclude. It is accepted that in the event the period under both heads was to be excluded then the assessment order would not be barred by time. Against assessee. - IT Reference No. 189 of 1987 - - - Dated:- 23-11-2010 - Yatindra Singh, Prakash Krishna, JJ. Shambhu Chopra for the Appellant R.R. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (the IAC), who issued his directions on 22-1-1983. Subsequently, the ITO passed an assessment order on 28-1-1983 assessing the income of the Assessee to Rs.5,44,210. 7. The assessee filed an appeal. The Commissioner of Income-tax (Appeals) (CIT-A) by its order dated 28-6-1983 held that the assessment order was not barred by time but it was set aside on other grounds. He remanded the case for passing a fresh assessment order. 8. Against the aforesaid order of the CIT (Appeals), the Income-tax Department (the Department) filed an appeal before the Income-tax Appellate Tribunal Allahabad Bench, Allahabad (the Tribunal). The Assessee, not only filed a cross-objection to the appeal filed by the Department, but also filed it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication was partly allowed and CIT v. Saraya Sugar Mills (P.) Ltd. [ITR No. 57 of 1986] was sent to this Court. 14. By our judgment delivered today in Saraya Sugar Mills (P.) Ltd.'s case (supra) we have answered the reference. The questions have been answered in favour of the Department and against the assessee. 15. In view of our reasons in the Saraya Sugar Mills (P.) Ltd.'s case (supra) it cannot be said that IAC Allahabad exercised the powers or performed the functions of the ITO, merely for the reason that he was conferred the concurrent jurisdiction. 16. In this case, neither any order was passed by the IAC-Allahabad assessing the income of the assessee nor is there anything to indicate that he exercised the powers or pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first assessable for the assessment year after 1-4-1969. This case relates to assessment year (AY) 1979-80 and falls under this clause. 22. The assessment year 1979-80 came to an end on 31-3-1980. In view of section 153(1)(a)(iii), the assessment ought to have been completed by 31-3-1982. The assessment order was passed on 28-1-1983. It is barred by time unless it could be saved by excluding the time provided in section 153 Explanation 1 of the Act. 23. The ITO referred the case for a special audit under section 142(2A) of the Act on 1-8-1981. The audit report was received on 16-1-1982. This period was to be excluded under section 153 Explanation 1(ii) of the Act. 24. After the audit report was received, a draft order was prepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heads was different. They were not overlapping with each other and as such the period when the case was referred under section 142(2A) till receipt of audit report as well as, when the draft order under section 144B was received by the Assessee (when it was served on the assessee) till the IAC issued direction, was to be excluded. 30. It is accepted that in the event the period under both heads was to be excluded then the assessment order would not be barred by time. In view of this, the third question is answered in negative, in favour of the Department and against the assessee. Conclusions 31. Our conclusions are as follows: (a) On the facts and circumstances of the case, the provisions of section 144B of the Act were ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishes a report of such audit under that sub-section, or (iv) the period (not exceeding one hundred and eighty days) commencing from the date on which the Income-tax Officer forwards the draft order under sub-section (1) of section 144B to the assessee and ending with the date on which the Income-tax Officer receives the directions from the Inspecting Assistant Commissioner under sub-section (4) of that section, or, in a case where no objections to the draft order are received from the assessee, a period of thirty days, or (v) In a case where an application made before the Income-tax Settlement Commission under section 245C is rejected by it or is not allowed to be proceeded with by it, the period commencing from the date on which s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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