9911796707
TMI Blog1992 (10) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... essee had filed objections to the draft assessment order. The Commissioner of Income-tax (Central) had passed an order under section 125A(1) conferring concurrent jurisdiction over this case on the IAC from 1-11-1978. The assessee's contention is that since this concurrent jurisdiction had been conferred, the provisions of section 144B would not be applicable by virtue of sub-section (7) thereof so that the extension of limitation period available under section 153, Explanation 1 (iv) was not available and that therefore, the normal period of limitation was applicable. Since the assessment year is 1981-82 the limitation expired on 31-3-1984. In order to appreciate the controversy it is necessary to set out the material parts of the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n conferred on the IAC under section 125A, the Dy. Commissioner had no jurisdiction under section 144B. On the other hand, the learned Departmental Representative submitted that although concurrent jurisdiction had been so conferred, that jurisdiction was not exercised by the IAC and so section 144B was fully applicable. Before, however, we enter upon consideration of this argument one point which was taken by the learned D. R. may be considered at the outset. The learned D.R. pointed out that the assessee in this case had submitted to the jurisdiction under section 144B by giving his objections to the draft order and that, therefore, now it was not open to the assessee to take this point regarding applicability of section 144B relying upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Digvijay Woollen Mills Ltd. v. ITO [1987] 61 CTR (Trib.) 33 (Ahd.) where the earlier Special Bench decision in the case of Saraya Sugar Mills (P.) Ltd. v. ITO [1985] 13 ITD 163 M.) has been followed. In the case of Digvijay Woollen Mills Ltd. the Tribunal found that not only was the power under section 125A conferred on the IAC, but it was also exercised by him. It, therefore, held that section 144B was not applicable. In the case of Saraya Sugar Mills (P.) Ltd. although the Special Bench has observed that once the concurrent jurisdiction is conferred on the IAC under section 125A he was deemed to have exercised the power vested in him, the Tribunal has also noted that the IAC had in fact exercised the powers and performed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 125A clearly speaks about the exercise of powers or performance of functions of an Income-tax Officer which clearly shows that the power must be exercised. Again, section 144B(7) speaks about the Dy. Commissioner exercising the powers and not only that, it speaks about the exercise of powers in pursuance of an order under section 125A. This clearly shows that the exercise of the powers is necessary and that this exercise of the powers is a separate act because it is in pursuance of the order under section 125A. The learned counsel for the assessee has submitted that section 125A(2) makes merely conferment of the powers because according to him, the word " exercise " means mere holding of the powers, i.e., a mere capacity to exercise tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knows that if the power is exercised there would be a certain period of limitation and if it is not exercised there would be another period of limitation. It is not as if he is taken by surprise. This position from the beginning is knowable and is indeed known to him. The argument put forward by the assessee's counsel does not improve the position of the assessee. If it is accepted it would mean that the period of limitation would depend upon the conferment of the power and not upon the exercise of that power. In both cases it would depend upon the decision by the relevant authorities either to confer that power or to exercise it, as the case may be. The degree of predictability or, as the learned counsel put it, the whim and fancy would i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, etc., Rs. 7,165--The CIT (Appeals) erred in not considering this additional ground of appeal raised in writing on 288-1987 claiming these machinery repairs etc., which have been disallowed by ITO in assessment year 1982-83 as pertaining to this year." The learned counsel for the assessee stated that this ground can be decided here because in the Commissioner's order for assessment year 1982-83 it has been stated as follows : " In the second ground of appeal, the appellant had claimed a total expense of Rs. 16,050 which pertained to assessment years 1977-78 and 1981-82. Since the expenses pertained to the earlier years the same cannot be allowed this year." He also invited our attention to the copies of the bills which have been f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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