TMI Blog1994 (3) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. Notice under section 148 was served on the assessee on March 26, 1978, and the last date for finalising the assessment was March 26, 1979, under section 153(2)(b). However, the Income-tax Officer made a draft assessment under section 144B and referred the matter to the Inspecting Assistant Commissioner who gave directions on August 2, 1979. The assessment was completed on August 10, 1979, following the directions issued by the Inspecting Assistant Commissioner. The case of the assessee was that section 144B should not have been invoked for a reassessment under section 147 and therefore, the assessment order dated August 10, 1979, was barred by time. The Income-tax Appellate Tribunal accepted the contention of the assessee and, at the instance of the Revenue, referred the question stated above for our decision. As the question framed does not bring out precisely the matter at issue, we reframe the question in the following terms: " Whether section 144B has no application in respect of assessments and reassessments made under section 147 ? " It is the contention of Shri S. R. Ashok, learned counsel for the Revenue, that the entire gamut of statutory provisions that come i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) providing for corrections of errors on filing revised returns. Then comes section 142 which speaks of enquiry before assessment. The power to make assessment is incorporated in section 143(3): " 143(3). On the date specified in the notice issued under sub-section (2), or as soon afterwards as may be, after hearing such evidence as the assessee may produce and such other evidence as the Income-tax Officer may require on specified points, and after taking into account all relevant material which he has gathered, -- (a) in a case where no assessment has been made under sub-section (1), the Income-tax Officer shall, by an order in writing, make an assessment of the total income or loss of the assessee, and determine the sum payable by him or refundable to him on the basis of such assessment; " If an assessee fails to make a return pursuant to receipt of notice under sub-section (2) of section 139, the assessing authority is empowered to make a best judgment assessment under section 144. This is the normal procedure for making an assessment. We may also mention that the expression "assessment" as defined by clause (8) of section 2 reads as follows: " 'assessment' includes reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount fixed by the Board under sub-section (6), the Income-tax Officer shall, in the first instance, forward a draft of the proposed order of assessment (hereafter in this section referred to as 'the draft order') to the assessee. (2) On receipt of the draft order, the assessee may forward his objections, if any, to such variation to the Income-tax Officer within seven days of the receipt by him of the draft order or within such further period not exceeding fifteen days as the Income-tax Officer may allow on an application made to him in this behalf. (3) If no objections are received within the period or the extended period aforesaid, or the assessee intimates to the Income-tax Officer the acceptance of the variation, the Income-tax Officer shall complete the assessment on the basis of the draft order. (4) If any objections are received, the Income-tax Officer shall forward the draft order together with the objections to the Inspecting Assistant Commissioner and the Inspecting Assistant Commissioner shall, after considering the draft order and the objections and after going through (wherever necessary) the records relating to the draft order, issue, in respect of the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 147 are outside its purview since it mentions only section 143(3). Such a construction ignores the specific language employed in section 148 under which the assessing authority gets power to issue notice for reopening the assessments under section 147. As already noticed, section 148 lays down that the provisions of the Act shall, so far as may be, apply to a reassessment made under section 147. The phrase "so far as may be" implies that if there is anything inconsistent in the statutory provisions that come into play pursuant to a notice under section 139(2), to the extent of that inconsistency resort cannot be made to any other section of the Act. By necessary implication, we must conclude that section 144B not being inconsistent with section 148, that procedure has to be followed in an assessment or reassessment under section 147. In Dr. Partap Singh v. Director of Enforcement [1985] 155 ITR 166 (SC), the expression "so far is may be" came up for consideration. Section 37(1) of the Foreign Exchange Regulation Act obligates the officer issuing a search warrant, to record in writing, the grounds of his belief. Sub-section (2) provides that the provisions of the Code o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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