TMI Blog2004 (12) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... on facts in annulling the assessment treating it as barred by limitation whereas the assessment was framed well within time prescribed under the Income-tax Act in cases where notice under section 148 was issued. 3. The facts of the issue are that the assessee filed return of income for the year under consideration on 28-2-1994 in compliance to notice issued under section 142(1) on 1-2-1994. The return was processed under section 143(1)( a ) on 31-3-1994 and intimation slip was issued to the assessee. However, on 20-4-1994, the A.D.I., Investigation passed on certain information about the low G.P. declared by the assessee and the amount spent by the assessee on his daughter at her foreign trip. The Assessing Officer was having time to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of the time limit to complete this assessment on 31-3-1997 when the proceedings had already stood time barred. Therefore, even on this ground, this assessment is also void ab initio. 12. The provisions of section 147, Explanation 2( b ) can also not come to his rescue because first on the date of issue of notice under section 148 no escapement of income has taken place since the return was still alive and escapement has to be determined. Secondly, the language of this explanation says that But no assessment has been made meaning thereby that it is not possible to be made on that date, this explanation shall apply. In this case, on the date of issue of the notice under section 148, the time for making regular assessment was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was escapement of income. If the notice under section 143(2) would have been issued, the assessment order could have been framed on or before 31-3-1996. However, by issuing notice under section 148, he has illegally transgressed the jurisdiction to complete the assessment on 31-3-1997. The judgment of Hon ble Supreme Court in the case of K.M. Sharma v. ITO [2002] 254 ITR 772 1 also supports the above views. At page 777, the Hon ble Supreme Court has observed as under : "A fiscal statute more particularly a provision such as the present one regulating period of limitation must receive strict construction. The law of limitation is intended to give certainty and finality to legal proceedings and to avoid exposure to risk of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer and there was time to issue notice under section 143(2). Therefore, the assessment order could have been made under section 143(3) of the I.T. Act. When information was in possession of the Assessing Officer and he did not pass order under section 143(3) and he only processed the return under section 143(1)( a ), it cannot be held that there was escapement of any income, as the return was alive on the date of information, received by the Assessing Officer. Further we also agree with the CIT(A) that the language of this Explanation says that But no assessment has been made meaning thereby that it is not possible to be made on that date, this Explanation shall apply. However, on the date of issue of the notice under section 148, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer [1997] 94 Taxman 124 . We noted that the facts of that case are different than the instant case. Therefore, the above decision is not applicable to this case. However, the CIT(A) has rightly taken support of the decision discussed in his order, i.e., State of Assam v. Deva Prasad Barua [1970] 75 ITR 18 (SC), CIT v. S. Raman Chettiar [1965] 55 ITR 630 (SC), Estate of the Late A.M.K.M. Karuppan Chettiar v. CIT [1969] 72 ITR 403 (SC), Mohindra Mohan Sirkar v. ITO [1978] 112 ITR 47 (Cal.) and Commercial Art Press v. CIT [1978] 115 ITR 876 1 (All.) Therefore, this ground of appeal is also dismissed. C.O. No. 36/Agr./2003 : 14. The grounds raised in this cross objection read as under: "1. That under the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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