TMI Blog2009 (7) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... then in force. The notice of reassessment was not barred by limitation. (ii) the total income declared in the return was Rs. 4,060 but it was by ignoring the provisions of section 184. The allowance was corrected and then the interest had been calculated and charged in the assessment order. Therefore, there was no error in the levy as it was previous notice to the assessee. - 27 of 2003 - - - Dated:- 14-7-2009 - DHARMADHIKARI B. P., <?xml:namespace prefix = st2 /> SALVI U. D. JJ. Shivan Dessai for the appellants. S.R. Rivonkar for the respondent. JUDGMENT The judgment of the court was delivered by B. P. Dharmadhikari J.- The assessee's appeal came to be admitted on October 7, 2003, without formulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed form. The appellant/assessee did not comply with it and on September 6, 2000 he was served with another notice purporting to be under section 142 calling for accounts, certain documents and particularly informing him that he was to explain why the assessee firm should not be treated as AOP as he did not furnish return under section 139(1) or 139(4). The appellate authority in its order dated July 12, 2002, has mentioned that "the appellant has given its constructive acceptance to such a treatment which is evident from the facts that notices under section 143(2) on September 6, 2000 and November 27, 2001 and notice issued under section 142(1) on September 6, 2000 were responded to by the appellant without taking any objection whatsoever. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of four years within which the action for reassessment could have been taken and as the said period expired on March 31, 1999, the assessment or reassessment exercise as undertaken by the Assessing Officer in the present matter on December 12, 2001, is void ab initio. In support of his contention, he relied upon the judgment of the hon'ble apex court reported at S. S. Gadgil v. Lal and Co. [1964] 53 ITR 231. 6. He further points out that the assessee has been treated as association of persons and deductions claimed under section 184 have been disallowed only because of the alleged reassessment done on December 12, 2001. He argues that if reassessment is barred by limitation, disallowance itself is not legal and deserves to be set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proposed treatment as Association of persons was extended to the assessee and his explanation was called for. He therefore contended that the ingredients of the provisions under section 184(5) which otherwise operate of their own have been satisfied before levying tax as association of persons and not as a firm. He therefore, argues that no substantial questions of law arise in this appeal and there is no scope for remand also. 9. In his brief reply, advocate Dessai states that mention by the Income-tax Appellate Tribunal that the assessee did not challenge the validity of the proceedings under section 148 is incorrect because the said challenge was very much raised in the appeal memo filed before the Income-tax Appellate Tribunal and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is seven years from the end of the relevant assessment year if the quantum of income chargeable to tax which has escaped assessment is likely to be an amount of Rs. 25,000 or more for that year. As per sub clause (iii) the said period is ten years, if the quantum of such income is likely to be Rs. 50,000 or more for that year. 12. The facts on record need to be viewed in this back ground. The return filed by the assessee under mistaken advice is on January 9, 1998, and even if it is ignored and not accepted as his return, the said disclosure could have been very well used by the Assessing Officer while passing the order under section 147 read with section 143(3) of the Income-tax Act. The facts and figures disclosed by the assessee perta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been pressed into service shows that such interest is leviable on the tax on the total income declared in the return and not on the income as assessed and determined by the assessing authority and it cannot be assessed in the absence of specific order of the assessing authority. Here, the total income declared in the return was Rs. 4,060 but it was by ignoring the provisions of section 184(5) of the Income-tax Act. The allowance wrongfully appropriated by the assessee was corrected by the Assessing Officer and then the interest has been calculated and charged in the assessment order. Therefore, there is no error in the said levy as it is with previous notice to the assessee. 14. In the circumstances, we do not find any merit in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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