9911796707
TMI Blog1979 (5) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... Act on 7th May, 1973 are reproduced below in verbatim: "Sir, I beg to state herein that an order of assessment made under s. 144 of the IT Act of the aforesaid year along with a Challan for a sum of Rs. 34,408 and Demand Notice was duly served on me on 10th April, 1973. In cl. 7 of the said notice of Demand it is stated that if I was prevented by sufficient cause from complying with the terms of notice served by you under s. 143(2) I am to request you to cancel this assessment and to make a fresh assessment. In your assessment order you have stated that the case was fixed for hearing under s. 143(2) on 26th Feb., 1973 but there was no compliance. The hearing was refixed on 21st March, 73 and again there was no compliance. I have to offer the following explanation: With regard to the hearing dt. 26th Feb., 73 I say that you requested me to appear on the said date at 11 a.m. the said notice was served at 1.30 p.m. on 26th Feb., 1973 while I was in High Court. I got the notice on my return. Immediately thereafter by my letter dt. 27th Feb., 73, I had informed you that it was not possible for me to attend for the hearing fixed on 26th Feb., as i did not receive the notice in time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The original assessment was to be barred by limitation on 31st March, 1973. The assessment order, demand notice and challan were received by the appellant on 6th April, 73. There was no date on the assessment order and the date on the demand notice was 4th April, 1973. It was stated that since the demand notice was dt. 4th April, 1973 the assessment order should also be deemed to have passed on the same date and in any case the process of assessment including the computation of tax was not completed before 4th April, 73 which was beyond four clear days after the limitation date. Though the assessee had not pointed out this and had on the other hand filed a petition under s. 146 he had raised this objection in the appeal against order under s. 144 and has vehemently argued this in course of the present appeal. It is claimed that if the original assessment is invalid, the law will not give jurisdiction to make a fresh assessment. The authorised representative took pains to elaborate on this point and also to cite the judicial decisions reported at 39 ITR page 137, 41 ITR page 425 and also AIR (1963) SC 595. The authorised representative's stand is quite valid. Firstly, I agree that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r s. 144 of the AAC as provided for in s. 246(c), the assessee could not agitate against the said assessment and could not agitate the legality thereof now in appeal against the fresh assessment made under s. 143(3)/146 of the Act; (iii) That the AAC had no jurisdiction to hear and adjudicate upon the subject matter of legality of the previous assessment made under s. 144 of the Act in the present appeal which was before him; (iv) That the assessee had since lost his right to agitate against the assessment made under s. 144 of the Act; (v) That under s. 153 of the Act, governing limitation, fresh assessment made under s. 146 of the Act has been kept out of the purview of limitation as provided for in cl. (I) of sub-s.(3) of s. 153 of the Act; (vi) That the legislature had treated regular assessment made under s. 143 or 144 of the Act on different footing than the fresh assessment made under s. 146 of the Act; (vii) That whereas a remedy under s. 146 has been provided for having the ex-parte assessment made under s. 144 reopened and fresh assessment made, s. 146 of the Act having limited scope, does not confer any other right on the assessee; (viii) That for agitating ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was personally before us and argued his own case, did not dispute the correctness of any fact or findings of any fact. He has taken only legal objections and grounds, the main being that the assessment made under s. 144 being invalid and barred by time, the resultant fresh assessment made under s. 143(3)/146 was not binding on the assessee, and contended that s. 144 is not restricted to the requirement of making of an assessment only but requires much more to be done by the ITO. According to the assessee, what the law under s. 144 of the act requires is that the assessment shall be made and also tax computed and determined vis-a-vis the sum payable by the assessee or refundable to the assessee on the basis of such assessment. The assessee wanted to bring home the point that on a proper and harmonious interpretation of s. 144 of the Act, as a whole, the ITO was bound not only to make assessment but also to work out assessee's liability to tax and that work-out of tax liability is an integral part of the assessment. The assessee contends that this work-out of the tax liability is to be in the assessment order itself. Till such time, the work-out of tax liability is not there in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment." In the case before us total income of the assessee was assessed i.e. assessment was made on 29th March, 73. As is apparent from the order of assessment r/w the order sheet entry, as also the ITO has determined the tax due and payable under the assessment made in respect of the assessee in the prescribed form I.T 30/ITNS-150. Read as a whole, the order of assessment and the prescribed form IT 30/ITNS-150, which has been prescribed for determination of the tax dues/amount refundable and, thus, both the documents being integral part of each other, in our opinion, will make the assessment order. The assessment order as such is comprised of two parts—two documents—the order of assessment and the prescribed form IT 30/ITNS-150. 10. The fact as to making of assessment which was made on 29th March, 73 as also the making of prescribed form IT 30/ITNS-150, which was also made on 29th March, 73, is admitted by both the parties to this appeal. Both of the essentials, i.e., making of assessment of the total income as also the determination of the sum payable by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven to the assessee when making a best judgment assessment. It is also implicit that the authority concerned should give his reasons for arriving at a particular figure for enabling the assessee to appreciate the mental process leading to the assessment, and such order being subject to appeal need also be a speaking order," The assessee in the case before us has not taken any ground or also has not contended that prior to making of best judgment assessment under s. 144, he wanted an opportunity of being heard. As such we are of the opinion that this case is also not helpful to the assessee. On the facts and in the circumstances, he has contended before us on points/grounds above referred to in the body of this order, this case stands differentiated. Raja Harish Chandra Raj Singh vs. The Deputy Land Acquisition Officer (3). This case was under s. 182(2), proviso (b) of the Land Acquisition Act, 1894 and their Lordships observed that "the date of the Collector's award to be the date when award was either communicated or is known by the party, whether actually or constructively". The facts and point in issue were that the award was made by the Collector and not notice was served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Viswanathan Chettiar vs. CIT (8), and the relevant observation of their Lordships of the Madras High Court are extracted below: "But that difference need not detain us further in determining the question when an order of assessment is 'made' within the meaning of s. 34(2) of the Act. Sub-ss(1), (4) and (3) of s. 23 provide for one stage, assessment of the income and the determination of the sum payable by the assessee as tax on the basis of such assessment of the income. That, it seems to us, determines the scope of 'making ' an order of assessment within the meaning of s. 34(2) of IT Act. It is that stage that has to be completed within the period of limitation prescribed by s. 34(2), in that case four years from the close of the year of assessment, 1942-43." The last authority cited by the assessee is that reported in s. Mubarik Shah Naqshbandi vs. CIT (7). This was an income-tax reference for the decision of their Lordships of Jammu & Kashmir High Court referred to by the Tribunal, Chandigarh Bench. Their Lordships have held in the above case that s. 144 of the Act is procedural, it is also mandatory in nature and it was obligatory in law, on the part of the ITO to determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the year in which the income, profits or gains were first assessable, the assessment order was barred by limitation under the provisions of s. 34(2) of the Act. This contention was repelled by the High Court and it was held that it is the date on which the assessment is made which relevant for the purpose of s. 34(2) of the Act and not the date on which the assessment order or the demand notice is served upon the assessee. This decision of the Madras High Court was approved by the Supreme Court in CIT vs. Balkrishna Malhotra (6). In neither of these cases did the question arise for consideration whether the assessment order should not only specify the income as determined by the ITO but should also specify the income tax payable on such income. There are certain observations made by the Madras High Court in the case of Viswanathan Chettiar (3), which suggest that the determination of the income and the determination of the payable thereon are inseparable parts of an assessment order." 13. The authorities cited by the Revenue, we fear, are of no avail to the case of the Revenue. 14. In the face of our discussion as above, we are of the opinion and do hold that the process of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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