1980 (10) TMI 89

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..... me prescribed either under s. 139(1) or 139(2). The ITO in the similarly worded assessment orders for the two years stated that "To regularise the proceedings a notice under s. 148 was issued on 31st March, 1979". It may be pointed out that the ITO and the AAC have both mentioned the date of notices issued under s. 148 wrongly. The correct date of issue of notices under s. 148 was 31st Jan., 1979. This factual position is not disputed by either of the parties. Having issued the notices under s. 148 the ITO has passed the two assessment orders under s. 143(3) r/w s. 148. The assessee challenged the validity of the assessments framed after the issue of notices under s. 148 before the AAC. The AAC for the first year accepted the assessee's con .....

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..... on which was computed with reference to the return filed on 30th Aug., 1978 and the assessment order having been passed on 12th Dec., 1979 was claimed to be barred by limitation. Now considering the issue properly the second line of reasoning about the limitation was not at all important as the major issue was whether the ITO had correctly acquired jurisdiction under s. 148 when the assessee had already filed a return on 30th Aug., 1978 and which was pending disposal. In the facts of this case the answer to this question is clear and well settled by Supreme Court decisions reported in 36 ITR 569, 72 ITR 403 and 78 ITR 69. When a return of income filed validly under s. 139(4) was pending disposal before the ITO, it is not possible at all to .....

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..... ptl. Rep. however, tried to put a plea for the Revenue that ITO's action under s. 148 may be treated to be superfluous and the assessment made may be judged as if made in consequence of the return filed under s. 139(4). Alternatively, it was also contended that this was a mistake committed by the ITO and s. 292B should be construed in the favour of the Revenue. I do not think that the Deptl. Rep. could be allowed to re-write the order of the ITO and thus wash out an illegality committed by him in framing the assessment. Sec. 292B cannot be invoked in my view to wash out illegalities committed by an ITO. The section clearly provides that the proceedings under consideration are in substance and effect be in conformity with or according to the .....

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