9911796707
TMI Blog1985 (11) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... -3-1977. Provisions under section 153(1)(b) in the facts and circumstances of the case were not attracted. Assessment made on 28-1-1983 being barred by limitation should have been annulled. The learned AAC was not justified to set aside the same for being done de novo." 2. On 17-7-1985, a petition from the learned counsel for the assessee, Shri Mohan Lal, was received in which a request was made for modification of the said ground and he had come forward with the three grounds, which are placed on the file. However, when it was pointed out to him that the modified grounds are nothing but different aspects of the main ground raised in the appeal, he could address the Bench on all aspects of the original ground, therefore he elected not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 58,333 was made on the ground that no evidence had been produced by the assessee. It is this action of the AAC which is disputed by the assessee. 5. The learned counsel for the assessee submitted before us that looking to the dates and following the decision of the Tribunal in the case of Smt. Jyoti Dhillon a copy of which be placed on the assessee's compilation, assessment deserves to be quashed and annulled and the action of the AAC setting aside the same is erroneous. He submitted that initially section 153(1)(b) provisions were never invoked by the ITO nor a mention of concealment was made in the assessment or before it. Of course, it was after the assessment was framed that notice under section 271(1)(c) of the Act was mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment, which is a condition precedent for application of section 153(1)(b) provisions, was absent nor there was no mention of the said section by the ITO in the assessment order. We will be dealing with the case law cited by both the parties and in case all the decisions are carefully gone through, the assessee's contentions get a support not only from the decisions relied upon by the learned counsel but even from some of the decisions which are relied upon by the learned senior departmental representative looking to the clear aspect that it was in the case of Smt. Jyoti Dhillon that assessment was annulled by us, the facts in the background are absolutely the same, with the only difference, that in the instant case assessment was made on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of opinion among various High Courts as to whether in a case where the first return filed under section 139(4), revised return filed after that gives the extended time to complete the assessment under section 143(3) or not. But in view of the Supreme Court judgment in CIT v. Naga Hills Tea Co. [1973] 89 ITR 236, the view that favours the assessee has to be adopted. Therefore, the decisions of the Delhi and the Allahabad High Courts favouring the appellant have to be adopted in this case." 9. Now what survives to be dealt with is the issue pertaining to dragging the instant case under section 153(1)(b). Our attention was also invited in this regard to Instruction No. 888 dated 1-10-1975, as per which extension by limit of one year under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e section 271(1)(c) notice was issued after the assessment was framed could give the benefit of extended period under section 153(1)(b). This could not take the place of condition precedent according to us. Moreover, in this case even penalty under section 271(1)(c) could not be justified because it was framed on protective basis. We are in agreement with the learned counsel for the assessee to this effect that there should have been a finding recorded by the ITO. Though this issue has also been considered by us in the case of Smt. Jyoti Dhillon, i.e., daughter of the assessee, according to the ITO, she was the full owner of the godowns and the entire investment was made by her. As above said, in the assessee's case that is under considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closer proximity with the case of Smt. Jyoti Dhillon than that of Madan Mohan Lal Aggarwal's case, relied upon by the learned senior departmental representative, though of this very Bench. The learned senior departmental representative had relied on para 20 of the said order but reading of that alone shows how far it is from the facts of the instant case. The Calcutta High Court decision, however, supports the contention of the revenue but again in this case what was dissented was the Delhi High Court decision and that makes a case of two opinions. Looking to another the Delhi High Court decision in H.G. Gupta Sons' case, this case is under the Indian Income-tax Act 1922 ('the 1922 Act') but, however, mentions that section 28(1)(c) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
