9911796707
TMI Blog1991 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... was not barred by limitation ? " Shortly stated, the facts are that the assessee-company submitted return for the assessment year 1978-79 declaring a total income of Rs. 18,67,075. The Income-tax Officer, J-Ward, Comp. II, in making the assessment under section 143(3), prepared a draft assessment order as the variation in the income returned by the assessee and the income to be assessed exceeded Rs. 1,00,000. He, accordingly, forwarded a draft assessment order in terms of section 144B to the assessee on March 28, 1981. The assessee filed objections to the draft assessment proposals of the Income-tax Officer by its letter dated April 2, 1981. Subsequently, the draft assessment order together with the assessee's objections were forwarded to the Inspecting Assistant Commissioner, Range-VII, Calcutta. Some time later, the Commissioner of Income-tax, West Bengal IV, Calcutta, by his order dated June 1, 1981, transferred the jurisdiction of the assessee's case from the Income-tax Officer, J-Ward, Comp. Distt. II, to the Incometax Officer, B-Ward, Special Circle III, Calcutta. At the time the order pertaining to the change in the jurisdiction of the Income-tax Officers was passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in view of the requirements of the proviso to section 129. " The Tribunal held that the Inspecting Assistant Commissioner had given effective and substantive opportunity to the assessee not only under section 144B but also under section 129. Accordingly, the Tribunal held that the objections raised by the assessee are not tenable. On these facts, the questions set out hereinbefore have been referred to this court. At the hearing, it has been submitted by Dr. Debi Pal, learned counsel for the assessee, that the authorities below erred in ignoring, the clear provision of section 129 and the Commissioner of Income-tax (Appeals), on the facts of the case, should have cancelled the assessment being barred by limitation, and even otherwise the assessment was void, as no opportunity as demanded by the assessee under section 129 was given before the completion of the assessment. It is reiterated before us that the assessee demanded under section 129 that the previous proceedings should be reopened and that the assessee should be reheard by the Income-tax Officer before making the assessment. According to learned counsel of the assessee, the right of the assessee under section 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter was pending before the Inspecting Assistant Commissioner, Range VII, who held jurisdiction over the case under section 144B and that, in the circumstances, no proceeding was pending before the Income-tax Officer, B-Ward, Special Circle III, at that stage relating to the assessment year 1978-79. The Incometax Officer after sending the draft assessment order along with the objections of the assessee to the Inspecting Assistant Commissioner concerned, has no other power to rehear the assessee in view of the provisions of section 144B. The provisions of section 144B are quite clear and unambiguous. The Income-tax Officer, in case he was of the opinion that there would be a variation of the assessed income vis-a-vis the returned income exceeding more than Rs. 1 lakh, has to conform to the requirements of section 144B. He has to prepare, in the first instance, a draft of the proposed order of assessment and forward it to the assessee. On receipt of the draft order, the assessee may forward his objections, if any, to such variation. If no objections are received within the period or extended period as stipulated, the Income-tax Officer has to, complete the assessment on the basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only hear the assessee on the objections raised by it on the draft order of assessment. The Inspecting Assistant Commissioner concerned, in the present case, did take into account the provisions of section 129. In our opinion, the opportunity extended by the Inspecting Assistant Commissioner in the present case was effective and substantial. The assessee has, however, chosen not to avail of the opportunity in order to assail any point in the draft assessment order or any portion of it apart from what was raised or agitated in its written objections dated April 2, 1981, sent to the Income-tax Officer, J-Ward. Apparently, the assessee was satisfied with its written objections sent to the Income-tax Officer earlier and there was no indication in its objections dated April 2, 1981, that the assessee would produce further evidence or materials, etc., afterwards. We are of the view that the contentions raised by the assessee have no merit. The assessee has the right to be heard under the proviso to section 129 and such right does not subsist after the concerned Income-tax Officer refers the matter to the Inspecting Assistant Commissioner who is then duly seized of the matter. The procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inspecting Assistant Commissioner, can give hearing to the assessee under section 129 after March 31, 1981, as contended by the assessee. In such a situation, the successor-Income-tax Officer could not have restarted the exercise of hearing the assessee or preparation of a fresh draft assessment order and the rest of it, when the case would have stood time-barred earlier irrespective of the fact and time allowed under section 129 read with the Explanation 1(i) to sub-section (3) to section 153. An authority can reopen the proceeding or any part thereof under section 129 only within the normal period of limitation, and not thereafter. In our view, therefore, the successor-Income-tax Officer could not have given any hearing to the assessee as demanded by him. Opportunity in such a case has to be given only by the officer before whom proceeding is pending ; in the instant case, it is the Inspecting Assistant Commissioner before whom the proceeding regarding approval for the, draft of the, assessment order was pending. It is nobody's case that such opportunity was not extended by the Inspecting Assistant Commissioner to the assessee. As a matter of fact, the Tribunal found that the opp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
