9911796707
TMI Blog1990 (11) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... they are as follows : One A. R. Mahendra, Coffee Planter, Hosahalli Estate, the petitioner in all these petitions, filed the return of his income in Form No. 3 prescribed under the Rules framed under the Act declaring a loss of Rs. 65,089 for the assessment year 1976-77 and the assessment for that year, how ever, came to be made on August 13, 1977, by determining the net income at Rs. 19,603. Similarly, for the year 1977-78, he filed his return declaring a loss of Rs. 97,759 and the assessing authority made an assessment on September 13, 1977, by determining the net income at Rs. 18,191. For the assessment year 1978-79, the assessee returned a loss of Rs. 44,388 and the assessment was made on July 12, 1978, by determining the net income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated January 18, 1984, against the said orders passed in Appeal Petitions Nos. 149, 150, 151 and 152 of 1982-83. Appeals were lodged before the Appellate Tribunal which has sustained the orders of the assessing authority and the first appellate authority. Hence, the present revision petitions, inter alia, on the two grounds (1) that the assessing authority could not have any jurisdiction under section 36 to pass the orders and (2) even if he had jurisdiction, the same was exercised beyond the prescribed period of limitation under section 36 as it stood in the year 1983. The facts we have stated above are not in dispute. Therefore, the only questions which fall for our consideration are the two points urged by the assessee-revision-peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year, serve on the person liable to pay the tax or in the case of a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 18 and may proceed to assess or reassess such income and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section : Provided that the tax shall be charged at the rate at which it would have been charged if such income had not escaped assessment or full assessment, as the case may be : Provided further that, in computing the period of limitation for assessment or reassessment under this section, the time during which the assessment has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Supreme Court, while interpreting sections 34 and 22 of the Indian Income-tax Act, 1922, which is in pari materia with section 36 and section 18 of the Act, the assessing authority acquires no jurisdiction. In the instant case, we have seen that there was no reference to any notice issued by the assessing authority intimating the assessee that any income had escaped assessment. Possibly, that could not have been done as what was returned for the relevant assessment years was loss, in other words, "Nil" income. But, that came to be rejected and a best judgment assessment was made for all the four years which leaves no doubt in our mind that the assessing authority did not form an opinion that there was any escapement of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction to proceed to assess the assessee once again on the fresh voluntary returns filed by the assessee in 1983. However, Mr. H. L. Dattu, learned counsel for the respondent, stated, placing reliance upon the judgment of the Supreme Court in the case of Niranjan and Co. P. Ltd. v. CIT [1986] 159 ITR 153, that it was open to the assessing authority to take notice of a fresh return filed and proceed to assess any escaped assessment. In that case, what had happened was that the assessee had filed a return of income under the Income-tax Act showing certain income. That income came to be assessed and assessment was concluded. Without knowing that assessment orders had been passed, the assessee therein, who was the appellant before the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed any escapement which could form the basis for the assessing authority to start afresh and proceed under section 36 even if one were to go by the decision in the case of Niranjan and Co. (P.) Ltd. [1986] 159 ITR 153 (SC). We, therefore, find that the Tribunal as well as the first appellate authority totally overlooked the question of jurisdiction and blindly confirmed the order without noticing the grave irregularity committed by the assessing authority, namely, the agricultural Income-tax Officer, Hassan. Therefore, we have no choice but to set aside the orders of the Tribunal as well as the other orders which merged in the Tribunal's order. We may also add, having regard to the period of limitation prescribed for exercising jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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