TMI Blog2019 (1) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... the time during which the Court stayed the proceedings. It places on the record that “there is no statutory support for such a claim unlike that available under Section 153, which specifically provides for the exclusion of the period during which the assessment proceeding is stayed by order of injunction of any court.” Then it adds, “the present claim is, therefore, made on the basis of equitable consideration.” I am afraid once a statute governs a field of activity, then equity has no role to play; equity yields to a statute. Under these circumstances, hold that the proceedings the Department initiated against the petitioner could not be sustained. - decided in favour of assessee - WP(C). No. 32098 of 2018 - - - Dated:- 28-11-2018 - MR DAMA SESHADRI NAIDU, J. For The Petitioner : ADVS. SRI. M. GOPIKRISHNAN NAMBIAR SRI. JOSON MANAVALAN SRI. K. JOHN MATHAI SRI. KURYAN THOMAS SRI. PAULOSE C. ABRAHAM, SRI. P. GOPINATH AND SRI. RAJA KANNAN For The Respondents : SRI JAISHANKAR. V. NAIR, CGC JUDGMENT An assessee faced assessment proceedings. Its challenge against them is pending before the Appellate Tribunal. Initially, before this Court, the assessee enjoye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the Income Tax Department has submitted that only because of the stay this Court imposed on all further proceedings, could the Department not proceed to invoke Section 147 of the Act. According to him, whatever applies under Section 153, as with the original assessment orders, should apply as a matter of equity against the reassessment, too. 7. Heard the learned counsel for the petitioner, learned Standing Counsel for the Department and the learned Central Government Counsel. Discussion: 8. Indeed the facts are not in dispute. IBS Software first assailed Ext.P2 original assessment order and secured a stay from this Court. That stay lasted for over three years. The question is, has the stay in the pending original proceedings, or the litigation concerning the original assessment proceedings, disabled the Department from taking appropriate steps to reassess IBS Software on escaped assessment? 9. We will examine the statutory scheme. Section 147 of the Act deals with the income escaping assessment. 10. Under Section 147, if the Assessing Officer suspects that any income chargeable to tax has escaped assessment for any assessment year, he may assess or reasse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. * * * [ Italics supplied] 13. Section 148 mandates the Assessing Authority to put the assessee on notice before his making the assessment, reassessment, or recomputation under section 147. Through that notice, he will ask the assessee to furnish, within a specified period, a return of his income or the income of any other person for which he is assessable. Section 149, however, sets the time limit for notice. The Assessing Authority shall issue no notice under section 148 if four years has elapsed from the end of the relevant assessment year. Clause (b) and clause (c) carve out exceptions, though. Under clause (b), if the income escaped from assessment comes to one lakh rupees or more for that assessment year, the notice can be issued in six years. When the income relates to assets located abroad, the limitation is sixteen years. 14. Section 149 of the Act reads: 149. Time limit for notice.- (1) No notice under Section 148 shall be issued for the relevant assessment year,- 1[(a) if four years have elapsed from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e months from the end of the assessment year in which the income was first assessable: * * * Explanation 1.- For the purposes of this section, in computing the period of limitation- ( i) the time taken in reopening the whole or any part of the proceeding or in giving an opportunity to the assessee to be reheard under the proviso to Section 129; or * * * ( italics supplied) 16. Now, we will put the statutory stipulations in perspective. The first proviso to Section 147 of the Act fixes a time frame. If an assessment either under subsection (3) of Section 143 or Section 147 has been made, no action shall be taken under Section 147 after four years from the end of the relevant assessment year. But this limitation of four years does not apply if any income chargeable to tax has escaped assessment for that assessment year; this escapement must have been because of the assessee's failure to file a return under Section 139 or in response to a notice issued under sub-section (1) of section 142 or Section 148, or to disclose fully and truly all material facts necessary for his assessment for that assessment year. 17. Section 148 provides for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
