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TMI Blog2019 (1) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... MENT An assessee faced assessment proceedings. Its challenge against them is pending before the Appellate Tribunal. Initially, before this Court, the assessee enjoyed the stay for a few years. Pending those proceedings, the petitioner faced a notice under Section 148 of the Income Tax Act; the notice concerns income escaping assessment. The notice is attacked on the grounds of limitation-four years under Section 149 of the Act. Under Section 153 of the Act time limit for assessment and reassessment is flexible; the period of stay or injunction stands excluded. But Section 149 does not enjoy such accommodation. 2. To save the limitation under Section 149, the Department takes shelter under the equity principle, for Section 153 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disabled, according to him, the Department from invoking Section 148 of the Income Tax Act and reassess IBS Software's income. Unless there is an express saving as contained in Section 153, the Department cannot defeat IBS Software's accrued right. 6. In response, the Standing Counsel for the Income Tax Department has submitted that only because of the stay this Court imposed on all further proceedings, could the Department not proceed to invoke Section 147 of the Act. According to him, whatever applies under Section 153, as with the original assessment orders, should apply as a matter of equity against the reassessment, too. 7. Heard the learned counsel for the petitioner, learned Standing Counsel for the Department and the learned Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee fails to disclose fully and truly all material facts necessary for his assessment for that year, the limitation does not affect the proceedings. 12. Section 147, to the extent relevant, reads: 147. Income escaping assessment.- If the Assessing Officer, has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the end of the relevant assessment year. Clause (b) and clause (c) carve out exceptions, though. Under clause (b), if the income escaped from assessment comes to one lakh rupees or more for that assessment year, the notice can be issued in six years. When the income relates to assets located abroad, the limitation is sixteen years. 14. Section 149 of the Act reads: 149. Time limit for notice.- (1) No notice under Section 148 shall be issued for the relevant assessment year,- 1[(a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b) 2[or clause (c)]; (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment, reassessment, and recomputation. Subsection (1) of Section 153 mandates that no order of assessment shall be made under section 143 or section 144 at any time after twenty-one months from the end of the assessment year in which the income was first assessable. Explanation to this Section holds the key. Under explanation 1, in clause (ii), finds mentioned is the delay because of judicial intervention. So to the extent relevant, we will extract Section 153: 153. Time limit for completion of assessment, reassessment and recomputation.- (1) No order of assessment shall be made under Section 143 or Section 144 at any time after the expiry of twentyone months from the end of the assessment year in which the income was first ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder either clause, the limitation could be extended, subject to other conditions, however. 18. Under Section 153, clause (ii) to the first explanation mandates that the period during which the assessment proceedings are stayed by order of stay or injunction by any court must be excluded. Conspicuously Section 149 does not contain any such exception as does Section 153. Of the two analogous provisions, one may contain an exception, and the other does not. Then the missing exception is by legislative design. That is, the legislature has intended to apply the exception to one set of facts but not the other. To hold that Section 149 stands out and does not have the luxury of extended limitation as does Section 153, we may also refer to Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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