TMI Blog2006 (4) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... rt was delivered by A. K. Patnaik C. J.— This is a reference under section 256(1) of the Income-tax Act, 1961 (for short "the Act"). 2. The facts as stated in the statement of case drawn up by the Income-tax Appellate Tribunal, Indore Bench (for short "the Tribunal) are that on the basis of a Departmental survey, notices under section 148 of the Act were issued to the assessee/respondent for the assessment years 1979-80, 1980-81, 1981-82 and 1982-83. In pursuance of the said notices, the assessee filed returns of income on March 25, 1986 and thereafter filed revised returns on December 8, 1986, and claimed that the returns have been filed under the amnesty scheme. The proceedings of assessment were taken up on March 10, 1987 and addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30, 1987, but the date of hearing was shown as September 20, 1988. 4. The assessee filed appeals before the Deputy Commissioner of Income-tax (Appeals) against the aforesaid assessment orders pleading that counsel for the assessee had never agreed to the additions and that the assessment orders were illegal inasmuch as they were dispatched by the Department very late and that since the returns were filed under the amnesty scheme, the Assessing Officer was not entitled to make any addition. The aforesaid contention of the assessee was not accepted by the Deputy Commissioner of Income-tax (Appeals) and the appeals of the assessee were dismissed. 5. The assessee then filed the second appeal before the Tribunal and the Tribunal in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the finding in paragraph 5 of the appellate order dated October 8, 1993, that the Tribunal had come to the conclusion that the assessments were not completed on November 30, 1987, because even though the hearing of the assessments took place on March 10, 1987, the assessment orders were not served on the assessee until August 26, 1988. He cited the decision of the Supreme Court in State of Andhra Pradesh v. M. Ramakishtaiah and Co. [1994] 93 STC 406, wherein it has been held that in the absence of any explanation whatsoever by the Department for the inordinate delay in service of order of assessment on the assessee, the court must presume that the order was not made on the date it purported to have been made and must have been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To give a date of hearing after interval of merely one year is not an impossibility but is improbability. In all these notices, date of hearing was given on September 20, 1988, which shows that the date of notices dated November 30, 1987, has not been correctly stated, which has been ante dated. Thus, when the notices have been ante dated, there is a reason to believe that the assessment orders also did not bear the correct date. In this view of the matter, it is held that the assessments are barred by limitation. The onus to prove that the assessment has been completed within the period of limitation is on the Department. The circumstances obtaining in this case, do show that the Department has failed to substantiate that the assessments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months later. There is no explanation from the Deputy Commissioner why it was so delayed. If there had been a proper explanation, it would have been a different matter. But, in the absence of any explanation whatsoever, we must presume that the order was not made on the date it purports to have been made. It could have been made after the expiry of the prescribed four years' period." 11. In any case, the aforesaid decision of the Tribunal that the assessments were barred by limitation, is a decision purely on facts. It is a settled position of law that in a reference under section 256 of the Act, the High Court cannot disturb the findings of fact arrived at by the Tribunal. In Patnaik and Co. Ltd. v. CIT [1986] 161 ITR 365, the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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