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TMI Blog2006 (10) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... ings vide order sheet entry dated 22-11-1993 wherein the Assessing Officer noted "Not attended. For orders". However, no order was passed. Meanwhile, the Assessing Officer who heard the case, was transferred and his succeeding officer took over the charge in February, 1994. The assessee by an application dated 1-3-1994, which has been shown to have been received in the office of Assessing Officer on 25-3-1994, made a request under section 129 of the Income-tax Act to provide an opportunity of hearing before passing the order for the assessment year 1991-92. The assessee was provided hearing on 4-3-1994 and 7-3-1994 and the case was discussed with Shri Sandeep Agarwal, Chartered Accountant, the Authorised Representative of the assessee. No further hearing was requested nor order was received by the assessee by 31-3-1994. Meanwhile the second officer was also transferred. The assessee was served with a notice on 6-5-1994 re-fixing the case for hearing on 9-5-1994 by calling upon the assessee to produce evidence on the points to be re-heard. The assessee again appeared before the Assessing Officer and filed copies of replies already submitted on various dates and informed the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of CIT (Appeals), the assessment proceedings were completed on 22-11-1993 and the assessment order was to be passed. However, the Assessing Officer who heard the case was transferred and his successor took over the charge before whom, the assessee vide letter dated 1-3-1994 requested to provide opportunity of being heard. The relevant extract of the letter is reproduced as under:- "Sir, it seems that no assessment order was passed by him before his transfer and you would be proceeding to make the same. So the assessee humbly request you to kindly provide a hearing opportunity before passing the order of assessment in the case of the assessee for assessment year 1991-92. Sir, this request is made in accordance with the provisions contained in section 129 of the Income-tax Act, 1961." 8. Apparently from the application of the assessee, it is clear that the assessee never wanted re-opening of previous proceedings. He wanted the opportunity of being re-heard before completion of assessment. This was done by the assessee vide his application dated 1-3-1994 which was received in the office of DCIT Range-I, Agra on 1-3-1994. Though the application said to have been filed on 1-3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the stage at which the proceedings were left by his predecessor. An exception has been carved out from the main provision that the assessee may demand before the proceedings are continued that (i) the previous proceedings or any part thereof be re-opened or (ii) that before any order of assessment is passed against him, he be re-heard. According to the revenue the application dated 1-3-1994 was filed on 25-3-1994. The assessee was provided opportunity of being heard on 4-3-1994 and 7-3-1994. This means that the Assessing Officer provided an opportunity of being heard for the completion of the assessment. Proviso to section 129 comes in operation only when Assessing Officer intimates the change of incumbent before continuation of assessment proceedings. Admittedly, no intimation was given by the succeeding officer to intimate the change of incumbent. It is a mere coincidence that assessee filed a request to provide him an opportunity of being heard. Therefore, the letter dated 1-3-1994 cannot be treated as an application under section 129 of the Act. This view if supported by the decision of Hon'ble Patna High Court in the case of CIT v. Jagdish Prasad Chaudhary [1995] 211 ITR 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the conditions stipulated in section 129 and guidelines laid down by Hon'ble Patna High Court in the case of Jagdish Prasad Chaudhary are not fulfilled. To bring a case under the provisions of section 129, the Assessing Officer is duty bound to inform the assessee. Merely because the assessee has expressed his desire to be re-heard and mentioned in the application as filed under section 129 would not discharge the Assessing Officer from his obligation of informing the assessee. In a case if assessee had not filed application under section 129 on 1-3-1994, the Assessing Officer was duty bound to complete the assessment by 31-3-1994. The Assessing Officer has issued acknowledgement for receipt of letter dated 1-3-1994 on 25-3-1994 and has claimed extension of time under clause (i) of Explanation 1 of section 153 which reads as under:- "Explanation 1.- In computing the period of limitation for the purposes of this section- (i) the time taken in re-opening the whole or any part of the proceeding or in giving an opportunity to the assessee to be re-heard under the proviso to section 129, or shall be excluded." 14. From the facts stated above it is clear that the first succ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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