TMI Blog2005 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... nulled the assessment holding that no assessment could be framed against the appellant in the status of association of persons, since no return was filed in the status of association of persons nor notice under section 142(1)/148 of the Act was issued to the appellant in the status of association of persons. The Commissioner of Income-tax (Appeals) while setting aside the order of the Assessing Officer, directed the Assessing Officer to pass a fresh order of assessment after giving due opportunity of hearing to the appellant. The Department filed an appeal against the said order of the Commissioner of Income-tax (Appeals) before the Income-tax Appellate Tribunal, Indore Bench (for short "the Tribunal"). While the said appeal was pending before the Tribunal, the Assessing Officer issued a notice under section 142(1) of the Act to the appellant on September 23, 1992, requiring the appellant to file return in the status of association of persons. Pursuant to the said notice, the appellant filed a return in the status of association of persons and again claimed that it was a registered firm. On January 18, 1993, the Assessing Officer passed a fresh order of assessment treating the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under section 142(1) of the Act on September 23, 1992, and should have waited for the Tribunal to dispose of the appeal. He vehemently submitted that the entire action of the Assessing Officer in issuing notice under section 142(1) of the Act on September 23, 1992, and the assessment that followed pursuant to the notice are, therefore, without jurisdiction. Mr. R.L. Jain, learned senior counsel appearing for the Department, on the other hand, submitted that although the Department's appeal before the Tribunal was sub judice, no stay order has been issued by the Tribunal staying the fresh assessment proceeding after the assessment order was annulled by the Commissioner of Income-tax (Appeals) and, therefore, the, Assessing Officer had to complete the assessment pursuant to the order passed in appeal by the Commissioner of Income-tax (Appeals) within the time-limit prescribed in section 153(2A) of the Act hence the notice under section 142(1) issued on September 23, 1992, and the fresh assessment that followed cannot be said to be without jurisdiction. Sub-section (2A) of section 153 of the Act as well as Explanation I to section 153 of the Act, which are relevant for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the end of the financial year in which the appellate order of the Commissioner of Income-tax (Appeals) was received. The Assessing Officer could not have waited till the Tribunal decided the appeal on April 4, 1997, unless the Tribunal had passed an order of stay staying the fresh assessment pursuant to the order of the Commissioner of Income-tax (Appeals) annulling the assessment and directing fresh assessment after notice under section 142(1) of the Act. It is, therefore, not possible to hold that the Assessing Officer had no jurisdiction to issue notice under section 142(1) of the Act, when the Department filed an appeal against the order of the Commissioner of Income-tax (Appeals) annulling the original assessment before the Tribunal and the said appeal was pending before the Tribunal. The first substantial question of law quoted above is, therefore, answered in positive and in favour of the Department. On the second substantial question of law as to whether the protective assessment could be done separately from the original assessment or whether it was required to be done only simultaneously, there appears to be no provision in the Act providing for the manner in which a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Jain, learned senior counsel appearing for the Department, on the other hand, submitted that this is not a case where section 142(1)(i) of the Act was attracted because the appellant, in the present case, had already filed a return of income and notice under section 142(1)(i) is issued only where no return had been filed by the assessee. We find a lot of force in the submission of Mr. R.L. Jain, learned counsel appearing for the Department. Section 142(1) of the Act after its amendment with effect from April 1, 1988, is extracted hereinbelow: "142. Enquiry before assessment.-(1) For the purpose of making an assessment under this Act, the Assessing Officer may serve on any person who has made a return under section 139 or in whose case the time allowed under sub-section (1) of that section for furnishing the return has expired a notice requiring him, on a date to be therein specified, (i) where such person has not made a return within the time allowed under sub-section (1) of section 139 to furnish a return of his income or the income of any other person in respect of which he is assessable under this Act, in the prescribed form and verified in the prescribed manner and sett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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