TMI Blog1989 (6) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... n May 3, 1979, which was received by the assessee on May 8, 1979, who, thereupon, filed objections on May 29, 1979. The Income-tax Officer, thereafter referred the matter to the Inspecting Assistant Commissioner. The Inspecting Assistant Commissioner granted a personal hearing to the assessee on November 16, 1979. There after, the Inspecting Assistant Commissioner issued a letter to the assessee on December 17, 1980, informing the assessee that there was a change in the incumbent of the Income-tax Office and further if the assessee wants fresh hearing before the Income-tax Officer, the same can be obtained. The Inspecting Assistant Commissioner also pointed out in that letter that the time taken for giving a rehearing to the assessee would be excluded in computing the period of limitation under section 153 of the Act. The assessee, in his reply, disputed the point made by the Inspecting Assistant Commissioner about the exclusion of time but wanted a fresh hearing to be given subject to his objection. A fresh hearing was actually given on October 15, 1981, and the time taken for this was nine months and twenty-one days. If the time taken for rehearing and the time allowed to the Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal was also of the view that the various periods enumerated in Explanation I to section 153 are not mutually exclusive but are independent of each other and in any given case, each of them may act or may have to be considered in reckoning the time within which the assessment has to be completed. It is thereafter at the instance of the assessee the question of law aforementioned was referred to this court under section 256(1) of the Act. We heard counsel for the petitioner, Shri Mohan Vellappally, and Shri P. K. R. Menon, on behalf of the respondent. Admittedly, the return for the assessment year 1978-79 was filed on July 30, 1978, and, therefore, the assessment under section 143(3) will have to be completed on or before March 31, 1981, for section 153(1)(a)(iii) says that no order of assessment shall be made under section 143 or section 144 at any time after two years from the end of the assessment year in which the income was first assessable. Since the income was first assessable in the assessment year 1978-79, the assessment in question will have to be completed before March 31, 1981. But, in the present case, the variation between the income returned and the income p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Explanation 1 (iv) to section 153(3) of the Act provides that a period not exceeding 180 days commencing from the date on which the Income-tax Officer forwards the draft order under sub-section (1) of section 144B to the assessee and ending with the date on which the Income-tax Officer receives the directions from the Inspecting Assistant Commissioner under sub-section (4) of that section shall be excluded. In the case in question, the draft assessment order was forwarded to the assessee by the Income-tax Officer on May 3, 1979, and, therefore, the maximum period of 180 days will be taken into account under the Explanation aforementioned in computing the period of limitation. Under section 144B, the direction issued by the Inspecting Assistant Commissioner will have to be taken as a binding guidance to the Income-tax Officer in respect of the matters covered by the objection of the assessee. Thereafter, the Income-tax Officer has to pass the assessment order under section 143(3) read with section 144B of the Act. This assessment order under section 143(3) also will have to be passed by him in cases where no objections have been received from the assessee to the draft assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in Crossfield Traders v. CIT [1989] 179 ITR 606, 609 (ker), we held : "It is not open to the assessee to contend that the opportunity of being heard afforded to the assessee, in terms of the proviso to section 129 of the Act, was uncalled for and that the opportunity availed of by the assessee should not be taken into account for the purpose of removing the bar of limitation. Having elected to avail of the opportunity, in terms of the proviso to section 129 of the Act, it is not open to the assessee to contend either that he need not have been given the opportunity or that the availing of that opportunity was of no consequence. The applicant/assessee by his own conduct, cannot put forward such a plea . . . the time required for affording an opportunity of being heard to the assessee, in terms of the proviso to section 129 of the Income-tax Act, should be excluded in computing the time limit for the purpose of completing the assessment." In view of the aforesaid decision, this case also must share the same fate. But it is contended on behalf of the assessee in this case that he availed of the opportunity subject to his objection. A denial of natural justice in the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer. But, in that case, there was no request in terms of section 129 of the Act made by the assessee and that decision will not apply to the facts of this case. Admittedly, the assessee availed of a rehearing under section 129 of the Act on October 15, 1981. The assessee was asked on December 17, 1980 as to whether he would require a rehearing as contemplated under section 129 of the Act in view of the change of the Income-tax Officer. If he did not want to avail of that opportunity, he could have said so in which case the assessment would have been completed before March 31, 1981, within time. Since he has availed of this opportunity, the assessment could be completed only on May 13, 1982, that is, after 1 year and 42 days. The time to be excluded under Explanation 1 (iv) to section 153 (3) of the Act is 180 days and under Explanation 1(i) to section 153(3) is 9 months and 21 days which together comes to over one year and three months. Therefore, the assessment has been rightly held by all the authorities as within time. It is contended by counsel for the petitioner that the Income-tax Officer can avail of only one of the periods specified in Explanation I to section 153(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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