TMI Blog2000 (8) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 139(1) of the Income-tax Act, 1961, was July 31, 1987. The assessee filed an application for extension of time on August 3, 1987. The time was allowed uptil October 31, 1987. The return could not be filed. He again filed the application for extension of time for filing the return and again the time was extended uptil February 28, 1988. Even then the return was not filed by the assessee. The Assessing Officer has issued the notice under section 148 on October, 1988. On March 30, 1989, the assessee filed the return declaring an income of Rs. 49,65,690. The assessment was made on August 22, 1990, under section 143(3) read with section 147(a) of the Act of 1961. In appeal before the Commissioner of Income-tax (Appeals), the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 220 ITR 67 (SC). Learned counsel for the Revenue submits that when the return is filed in pursuance of the notice under section 148 of the Income-tax Act, 1961, for that limitation is four years. Thus, the assessment made was within limitation and that is not barred by limitation. He placed reliance on the decision of this court in the cases of Balish Singh and Co. v. CIT [1987] 165 ITR 575 (Cal); Kumar Jagadish Chandra Sinha v. CIT [1982] 137 ITR 722 (Cal) and Iqbal Singh Atwal v. CIT [1984] 147 ITR 599 (Cal). The facts are not in dispute that for the assessment year 1987-88, the last date for filing the return under section 139(1) of the Income-tax Act was July 31, 1987. When the return was not filed till October 25, 1988, the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as time barred as the notice under section 148 was illegal. The court has taken the view that the provisions contained in section 153(1)(a)(iii) were inapplicable. The plea that the assessment for 1972-73 had become time barred was without merit. When the assessee failed to file the return even within the outside limit, the Income-tax Officer could have reason to believe that the income for the said year had escaped assessment and was empowered to take action under section 147 of the Act. In Iqbal Singh Atwal v. CIT [1984] 147 ITR 599 (Cal), the controversy before this court was whether, when the return was filed before the notice under section 148 and the request of the assessee was that his return already filed be treated in response ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1922, as that permits the filing of the return before assessment is made and that return should not be ignored. Their Lordships further held that even if two opinions are possible the view which is in favour of the assessee must be accepted. In Satyanarayan Bhalotia v. CIT [1994] 207 ITR 1030 (Cal), the issue before this court was when a notice under section 148 of the Income-tax Act was issued and the return was filed before the time limit permitted under section 139(4) whether the assessee is entitled to carry forward and set off of its loss even if the loss is determined in pursuance of a return filed under section 148. This court had taken the view that carry forward and set off of its loss should be allowed on the basis of the retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 148 of the Act of 1961. Whether the return is filed in response to the notice under section 148 of the Act or is a return filed under section 139(4) depends upon the facts of each case. Therefore, for that we have to consider the facts available on record. The facts available on record are not in dispute that the last date for filing of the return was July 31, 1987. The assessee filed an application for extension of time to file the return. Extension was allowed uptil October 31, 1987. The second time also the assessee prayed for extension of time for filing the return. The time was allowed up to February 28, 1988. The return was not filed till October 25, 1988. On October 26, 1988, notice under section 148 of the Income-tax Act w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also pertinent to note that no explanation has been given during the argument if the assessee filed the return under section 139(4), why objection was not raised before the Income-tax Officer, that the return was filed under section 139(4) and the Income-tax Officer cannot make the assessment as the assessment is time barred. Even no objection was raised when the assessment proceeding was taken treating the return of the assessee in pursuance of the notice under section 148. The assessee's representative was appearing regularly in the proceeding for order under section 143(3) read with section 147 of the Act. That means the return was also accepted by conduct that the return was in pursuance of the notice under section 148 of the Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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