Andhra Pradesh H.C : The provisions of s. 144B are complied with and that the draft assessment order is a notice

High Court Of Andhra Pradesh

Berulal Tiwari vs. CIT

Sections 256(2), 144B, 282, 153

Asst. Year 1975-76

G. Ramanujulu Naidu & Y.V. Anjaneyulu, JJ.

R.C. No. 319 of 1982

29th February, 1988

Counsel Appeared

Abdul Razak & Habeeb Ansari, for the Assessee : M. Suryanarayana Murthy, for the Revenue


The Tribunal, Hyderabad, referred the following three questions of law for the consideration of this Court under s. 256(1) of the IT Act, 1961 (hereinafter referred to as ” the Act “).

” 1. Whether, on the facts and in the circumstances of the case, the hon’ble Tribunal is justified in holding that the provisions of s. 144B are complied with and that the draft assessment order is a notice?

Whether, on the facts and in the circumstances of the case, the hon’ble Tribunal is justified in holding that the draft assessment order is properly and validly served by affixture in accordance with the provisions of s. 282 and the CPC ?

Whether the hon’ble Tribunal is justified on the facts and in the circumstances and, in law in remanding the case to the ITO contrary to the mandatory provision of s. 153 ? “

We have heard learned counsel for the assessee, Sri Razak, and also learned counsel for Revenue. We must, at the outset, point out that the problems such as those that had arisen in this case are due to the tax officer allowing the assessment proceedings to drag on leisurely without any decisive action till almost the limitation was about to set in. This case relates to the asst. yr. 1975-76 and the assessment was going to be time-barred on March 31, 1978. The record does not indicate whether the ITO fixed this case for hearing prior to. March, 1978, and whether the assessment proceedings dragged on because of the assessee’s request for adjournments. According to the Tribunal’s order, the notice fixing the case for hearing under s. 143(2) of the Act was made out on March 16, 1978, and the case was fixed for hearing on March 22, 1978, leaving just ten days for the limitation to run out. As usual the tax authorities wanted all sorts of details for making the assessment. Being unable to furnish all the required information within the short time that was available, the assessee wanted time. The ITO adjourned the case to March 25, 1978. On March 25, 1978, the assessee could not furnish the information on the ground of his sickness and wanted more time. The ITO knew that the assessment would be barred by limitation on March 31, 1978. It, therefore, appears that some sort of draft assessment order under s. 144B was passed on March 29, 1978, and an endeavour was made to serve that order in order to overcome the limitation prescribed under s. 153 of the Act. The assessee avoided receiving the order and being desperate, the ITO served the order by so-called affixture. The assessee has questioned the validity of service by affixture and claimed that the assessment was barred by limitation. The ITO should blame himself for the problems that arose in this case subsequent to his passing the draft assessment order. We would express our disapproval of the way in which ITOs drag on the assessment proceedings till almost the last minute and rush through the entire, process of assessment when the limitation was about to set in without giving adequate opportunities to the assessees. The CIT, exercising administrative jurisdiction over these officers, should keep a close watch on the proceedings and should discourage any attempt on the part of the tax officers in dragging on the assessment proceedings till the last minute causing difficulties both to the assessee and to the Department.

The assessee in this case had obviously filed an appeal against the assessment and raised all possible contentions against the validity of the assessment, validity of service of notice, etc. While appreciating the assessee’s contention, the CIT (Appeals) set aside the assessment with a direction to redo the assessment after giving appropriate opportunity to the assessee. We are told that pursuant to the direction of the CIT (Appeals), a fresh assessment has been made and the matter had been processed further. Undoubtedly, the CIT has power to set aside the assessment and direct the making of a fresh assessment by giving appropriate opportunities to the assessee. Whatever prejudice was caused to the assessee was remedied by the CIT (Appeals) setting aside the assessment and directing a fresh assessment. We do not, therefore, think that this is a case where the assessee should have any grievance. We do not think that, strictly viewing the matter, any question of law arises from the order of the Tribunal. Even assuming that the three questions referred are questions of law, we would answer them in favour of the Revenue and against the assessee.

There shall be no order as to costs.

[Citation : 173 ITR 280]

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