9911796707
TMI Blog2013 (10) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... .1989 was barred by limitation. 2. This Court while admitting the appeal on 24.05.2005 framed the following substantial question of law:- "(i) Whether in the facts and circumstances, the Tribunal was justified in holding the assessment framed on 31st March, 1989 for the assessment year 1985-86 was barred by Limitation under Section 153(1)(a) and it was not a case governed by Section 153(1)(b)?" 3. The facts in brief may be noticed that a search was conducted under Section 132 of the Act on 24.08.1984; the accounting year of the assessee closed on 31.10.1984 and the due date for filing return was 30.06.1985; the assessee sought extension of time for filing the return vide application dated 24.06.1985, which was gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him on 17.03.1988 was factually incorrect, however, the CIT(A) came to the conclusion that as the acknowledgment bears the date of 17.03.1988 and there was no material on record to show that the notice in connection with the initiation of concealment etc. proceedings was not served on 17.03.1988, the plea regarding the assessment being barred by limitation was negated in view of the provisions of Section 153(1)(b) of the Act. 5. Before the Tribunal, the issue was thoroughly re-agitated by both the parties and the affidavits of Mr. S.K. Khandelwal, Mr. Raj Kumar Garg, Sales Tax Consultant, Mr. U.C. Jain, Counsel from the assessee's side and affidavit of Mr. Ashwini Kumar, AO from the Department's side were filed; several documents, note-sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e [if at all] could not be treated as assessment u/s 143 r/w u/s 271(1)(c) of the I.T. Act for which the period of limitation would be 8 years because the Assessing Officer did not make assessment under those sections and also had not recorded a finding as required u/s 271(1)(c) of the I.T. Act that the assessee had concealed particulars of his income or had deliberately furnished inaccurate particulars thereof. In view of the above, it can safely be held that the Assessing Officer was not sure upto 31.3.88 as to whether the assessee had concealed his income or furnished inaccurate particulars of his income because nothing had been mentioned in the alleged show cause notice dated 17.3.188, but only clarification/explanation has been sought. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls were allowed. 8. It was submitted by learned counsel for the Revenue that the learned Tribunal has not examined the matter in its entirety, with objectivity and in correct perspective and seriously erred in holding the assessment as barred by limitation and from the material available on record, it cannot be said that notice under Section 271(1)(c) of the Act was not issued on 17.03.1988 and, consequently, limitation under Section 153(1)(b) of the Act would be applicable and the assessment was well within limitation. 9. On the other hand, learned counsel for the respondent assessee submitted that the finding recorded by the learned Tribunal is essentially a finding of fact and no question of law arises for consideration of this Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin Clause (c) of Sub-section (1) of Section 271 of the Act. 12. In the present case, the A.Y. was 1985-86, therefore, the assessment could have been completed before 31.03.1988 if the provisions of Section 153(1)(a) of the Act were applicable and the same could be completed within the extended period if the provisions of Section 153(1)(b) of the Act were applicable. The AO taking benefit of the issuance of notice dated 17.03.1988 under Section 271(1)(c) of the Act framed the assessment on 31.03.1989, which was upheld by the CIT(A), however, on the learned Tribunal coming to the conclusion that notice under Section 271(1)(c) of the Act was not served on the assessee on 17.03.1988 as claimed by the department found the assessment to be bar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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