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TMI Blog1983 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... sment to the assessee. It also provides that on receipt of the draft order, the assessee may forward its objection, if any, to the ITO within seven days. Accordingly, the ITO in the instant case, following the provisions of section 144B, forwarded a draft of the proposed order of the assessment to the assessee on 26-3-1980. The contention of the assessee was that the draft assessment order was received on 3-4-1980, i.e., after the limitation period relevant to the year under appeal, which ended on 31-3-1980. This point was taken up by the assessee before the Commissioner (Appeals), before whom it was contended that the ITO sent two drafts of the proposed assessment orders. According to the ITO, the draft assessment order was served on the assessee on 26-3-1980 through Inspector of Income-tax by affixation. It was claimed by the assessee that two drafts were received by the assessee---one draft containing pages 1 to 8 was received on 3-4-1980 and the second draft containing pages 1 to 13 was received on 3-5-1980. The assessee submitted a reply dated 15-4-1990 as an objection to the draft assessment order. Thus, it was submitted before the Commissioner (Appeals) that the draft assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r stressed that the second draft order was received on 5-5-1980 which contained 13 pages. It is submitted that since the draft assessment order was obviously received after 31-3-1980, the assessment itself is ab initio void. That apart, it is also argued by the assessee's learned counsel that the assessee has all along kept the office open on all working days and there could be no refusal of receiving any notice from the ITO which would have necessitated service of the draft assessment order by affixation through the Inspector, as done by the ITO in the present case. It is urged, therefore, that the ITO has violated the provisions of section 282 of the Act in this respect. It is, therefore, contended that even on this score, the whole assessment proceedings were bad and ab initio void and the Commissioner (Appeals) should have cancelled the assessment. In this connection, reference is made to the decision of the Hon'ble Calcutta High Court in the case of Lilooah Steel Wire Co. Ltd. v. ITO [1972] 86 ITR 611 in which inter alia it was held that notices under section 148 of the Act ought to have been served on that assessee by 31-3-1964. It was submitted in the decided case, that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment proceedings. It is also stressed that the Commissioner (Appeals) has given his finding on the point raised by the assessee, as could be seen from the records itself. It is submitted that one Sri B. Chowdhury was a witness to the affixation made by the Inspector and, therefore, there was no irregularity if that Sri Chowdhury did not put his signature on the Inspector's report. In short, the learned departmental representative emphasised the findings and the observations made by the Commissioner (Appeals) in the impugned order. That apart, it is pointed out that even if there were any defects in the notice, etc., the provisions of section 282 would come into play and, therefore, there was no question of any irregularity or illegality in the assessment order as contemplated by the ITO and as confirmed by the Commissioner (Appeals) in the present case. 7. After going through the orders of the authorities below and after hearing both the sides, it is seen that the ITO forwarded the draft of the proposed order of the assessment to the assessee on 26-3-1980, as per affixation report of the Inspector, which the assessee is presently challenging. The Commissioner (Appeals) has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of section 144B comes into play. In this respect, we may refer to the decision of the Hon'ble Madhya Pradesh High Court in the case of Banarsidas Bhanot Sons v. CIT [1981] 129 ITR 488, in which the provisions of section 144B are considered to be procedural. It is not the case of the assessee before us that the ITO did not start the assessment proceedings within the limitation period or did not complete them within the limitation. The strong case which the assessee is making is that the draft assessment orders were received after 31-3-1980 which, according to the assessee, was beyond limitation period. But as mentioned above, forwarding of a draft for proposed order of the assessment cannot be equated with the issue of a statutory notice or requisition. The Commissioner (Appeals) has given a finding that the ITO has also sent a copy of the draft by registered post on 26-3-1980 which in fact has not been controverted by the assessee. Once the ITO proposes to make the variation as indicated above in the assessed income, the machinery provision of section 144B comes into play, which by itself is procedural in operation, inasmuch as the whole assessment proceeding goes on till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper and is in accordance with law, the mere fact that the draft order is neither signed nor dated, makes no difference. 12. It may be mentioned that at the time of hearing, it is urged by the assessee's learned counsel that the ITO, though on application by the assessee, extended the time to the assessee for submission of objection to the proposed assessment order, for more than two weeks, whereas section 144B(2) authorises the ITO to allow such time to the assessee not exceeding 15 days time. It is urged, therefore, that on this point alone, the order of the ITO is vitiated. In our opinion, this plea has no substance at all. The ITO extended the time applied for by the assessee which was slightly more than 15 days. In our view, the ITO did so in order to facilitate and not to prejudice the assessee in submission of objections, etc. Having regard to the facts of the case, this plea of the assessee also cannot be accepted. 13. Having regard to the various aspects of the matter as raised and contended before us by both the sides, we are of the view that the order of the Commissioner (Appeals) impugned before us regarding limitation aspects of the dispute, requires to be sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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