TMI Blog2014 (3) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Commissioner as well as the Tribunal came to the conclusion that the assessment order dated 30.03.1987 was really not made on that day and obviously the same has been made subsequent to that date - One also should not lose sight of the fact that the order dated 30.03.1987 came to be dispatched on 08.05.1987 and received by the assessee on 10.09.1987, after the assessee filed the letter before the Tribunal pointing out the time for passing assessment order expired - there is no error apparent on the face of the record and the Tribunal came to the right conclusion that the assessment order was not really made 30.03.1987 and the same was made subsequent to that date – thus, there is no question of law which arises from the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a direction to make fresh assessment in accordance with law. The case pertains to the assessment year 1977-78. After a long lapse of time, the assessee filed an appeal before the Income-tax Appellate Tribunal against the order of the Commissioner made under Section 263 of the Act, and during its pendency, the assessee filed a letter dated 30.04.1987 before the Tribunal seeking permission to withdraw the appeal for the reason that the time for making assessment consequent upon the orders under Section 263 was 31.03.1987 and inasmuch as no assessment was made on or before 31.03.1987 no assessment could be made, as such, the same is time-barred. The appellant's appeal was dismissed as withdrawn. Thereafter, on 10.09.1987, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have drawn an inference that it was not made on 30.03.1987. He further submits that the Tribunal had erred in finding that the order was not made on 30.03.1987 merely because the same was served later. The late service by itself cannot be the basis for drawing an inference that the same was not made on the day on which the order bears. Further, Section 144 of the Act does not envisage any time stipulation for service of the order and it is enough if the order is served within reasonable time and what is required to be considered is making of the order and not the service. In that view of the matter, the learned counsel submits that the conclusion arrived at by the Tribunal that the order made under Section 144 of the Act in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month in which the return is furnished, whichever is later. Section 144: If any person- a) fails to make the return required [under sub-section (1) of section 139] and has not made a return or a revised return under sub-section (4) or sub-section (5) of that section, or b) fails to comply with all the terms of a notice issued under sub-section (1) of section 142 [or fails to comply with a direction issued under sub-section (2A) of that section], or c) having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of section 143. the Assessing Officer, after taking into account all relevant material which the Assessing Officer has gathered [shall, after giving the assessee an opportunity of bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no notice under Section 143(2) was ever issued to the assessee. Issuance of a notice under Section 143(2) is mandatory. Even the requirement of notice of hearing before making the best judgment assessment under Section 144 of the Act has not been complied with. Considering all these aspects, both the appellate Commissioner as well as the Tribunal came to the conclusion that the assessment order dated 30.03.1987 was really not made on that day and obviously the same has been made subsequent to that date. One also should not loose sight of the fact that the order dated 30.03.1987 came to be dispatched on 08.05.1987 and received by the assessee on 10.09.1987, after the assessee filed the letter before the Tribunal pointing out the time for pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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