High Court Of Rajasthan
CIT vs. Uttam Chand Nahar
Sections 147, 148, 151, 282, CPC order 5, R. 15
Asst. Year 1984-85
Rajesh Balia & R.P. Vyas, JJ.
IT Ref. No. 35 of 1997
25th April, 2006
Counsel Appeared
Sangeet Lodha with Vivek Shrimali, for the Petitioner : Dinesh Mehta, for the Respondent
JUDGMENT
By the court :
The Tribunal, Jaipur Bench, Jaipur had submitted the statement of case along with following questions of law to be answered by this Court on reference application moved by the assessee as well as Revenue in relation to the order passed by the Tribunal in ITA No. 2250/Jp/1995 relating to the asst. yr. 1984-85 :
“1. Whether, in the facts and circumstances of the case, the Tribunal was right in holding that the AO had not misread the explanatory note and, therefore, had a reason to believe that income had escaped assessment ?
Whether, in the facts and circumstances of the case, the Tribunal was right in holding the proceedings to be valid despite the fact that the approval of Dy. CIT was not obtained by the AO ?
Whether, in the facts and circumstances of the case, the Tribunal was right in holding the proceedings to be valid by holding that the service on the adult member of the family was a sufficient notice ?
Whether, in the facts and circumstances of the case, the Tribunal was justified in holding the proceedings to be invalid on the ground that the period of less than 30 days was given to furnish the return of income despite the provisions of s. 292B of the Act ?”
2. The facts as appear from the statement of the case are that for asst. yr. 1990-91, the assessee has disclosed sale of his residential house and claimed exemption from inclusion of the capital gains in its taxable income under s. 54 of the IT Act, 1961. At the foot of computation of total income for the asst. yr. 1991, an explanatory note was appended by the assessee. On the basis of the aforesaid information disclosed by the assessee himself that he has made certain investments in construction of his residential house on the land which he acquired in 1961 and the investment in construction of house continued upto year 1983-84 that the total investment shown by the assessee in his house was to the tune of Rs. 3,00,000, the AO issued a notice under s. 148 r/w s. 147 of the IT Act, 1961 in relation to the asst. yr. 1984-85 for assessment/reassessment of the income of the respondent-assessee for the said assessment year.
As per the notice issued for reassessment under s. 148 for initiating proceedings under s. 147, the assessee was required to submit his return of income for asst. yr. 1984-85 within 30 days of receipt of notice. The notice was served on the son of the assessee who was adult member of the family of the assessee. Before initiating proceedings under s. 148, the AO has sought approval of the CIT through Dy. CIT.
In the assessment order passed by the AO for asst. yr. 1984-85 in pursuance of proceedings initiated under s. 148, the AO quoted the explanation appended to the return of the assessee for asst. yr. 1990-91. In the reproduction of the said explanatory note some line was missed, which conveyed that house was completed in 1979. The assessee has contended that this exclusion was deliberate to assume jurisdiction under s. 148 because after noticing the excluded part of explanation appended to return of 1990-91, no belief could be formed about escapement of income from assessment for asst. yr. 1984-85.
The present proceedings are about the objection raised by the assessee about the validity of the initiation and continuance of the reassessment proceedings in pursuance of notice under s. 148 issued on 15th Jan., 1993 and served on adult son of the assessee on 19th Jan., 1993 in pursuance of which the assessee had appeared. All the four questions raised relate to these aspects.
Q. No. 1. “Whether in the facts and circumstances of the case, the Tribunal was right in holding that the AO had not misread the explanatory note and, therefore, had a reason to believe that income had escaped assessment ?”
The question No. 1 concerns the objection of the assessee that by misreading the explanatory note submitted by the assessee due to exclusion of the vital part of the explanatory note, the AO had wrongly assumed the jurisdiction under s. 147 because had he taken notice of the aforesaid facts, there would have been no material on basis of which the AO could have entertained a belief that income of the assessee of the previous assessment year relating to the asst. yr. 1984-85 had escaped assessment. Entertaining such a belief is according to assessee, the condition precedent before assuming jurisdiction by the AO.
The explanation appended to return in its fullness reads as under : “The assessee has during the previous year relevant to the assessment year sold his residential house situated at 129, Ajeet Colony, Jodhpur, for a total consideration of Rs. 4,95,000 (which include Rs. 70,000 exclusively relating to sale of furniture and fittings like sofa set, fans, beds, electric fittings of appliances, etc.) to three parties. The cost of residential house was around Rs. 3 lakhs. The plot was acquired in 1961 in Rs. 2,000 and a very small construction was immediately raised and given on rent. Thereafter time to time construction was carried out and by 1979 a full and complete house was built. Thereafter also time to time investment was made upto 1983-84 for addition and alteration. Thus around Rs.
3 lakhs was invested towards cost of the residential house. The capital gain is not taxable as has been shown in the computation of income, even without considering the deduction of ss. 54 and 48 of the Act being long-term capital gain. Further, the assessee has again started construction of other residential house on the land acquired on lease in July, 1989.” However, the ITO in assessment order, has quoted the aforesaid explanation. The emphasised portion of two reproductions highlights that following underlined italicised in print part of the explanation did not find place in reproduction by the ITO : “The assessee has during the previous year relevant to the assessment year sold his residential house situated at 129, Ajeet Colony, Jodhpur for a total consideration of Rs. 4,95,000 (which include Rs. 70,000 exclusively relating to sale of furniture and fittings like sofa set, fans, beds, electric fittings of appliances, etc.) to three parties. The cost of residential house was around Rs. 3 lakhs. The plot was acquired in 1961 in Rs. 2,000 and a very small construction was immediately raised and given on rent. Thereafter time to time construction was made upto 1983-84 for addition and alteration. Thus around Rs. 3 lakhs was invested towards cost of the residential house. The capital gain is not taxable as has been shown in the computation of income, even without considering the deduction of ss. 54 and 48 of the Act being long-term capital gain. Further, the assessee has again started construction of other residential house on the land acquired on lease in July, 1989.” “thereafter time to time construction was carried out and by 1979 a full and complete house was built. Thereafter also” time to time investment was made upto 1983-84 for additions and alterations.
8. It is true that entertaining belief that income of the assessee had escaped assessment or has been subjected to tax at a low rate on account of failure on the part of the assessee to disclose truly and fully all material facts necessary for the assessment is a condition precedent before the AO assumes jurisdiction to issue notice under s. 148 after the expiry of four years from the end of the relevant assessment year. Notice in the present case was issued on 15th Jan., 1993 which was beyond four years from the end of the asst. yr. 1984-85 and extended period of limitation for initiating proceedings under s. 147 applied and could have been initiated only on satisfaction of the ITO about failure on the part of the assessee to disclose truly and fully all material facts relevant for the assessment of the assessee. However, such satisfaction is subjective one. So long as there is some material having nexus with formation of reason to believe, the satisfaction is not liable to be reviewed. Adequacy or sufficiency of material are not the grounds on which existence of belief can be questioned and examined. The AO, the CIT(A) and the Tribunal have found that omission of the aforesaid part of explanatory note from the reproduction of the explanatory note, does not affect the holding of belief by the ITO about escapement of income of asst. yr. 1984-85 from assessment. As a matter of fact they were of the opinion that it is apparent that even as per the note of the assessee, read in its entirety, the investment in the construction of the house has continued upto previous year 1983-84 relevant to asst. yr. 1984-85, even after completion of house in 1979. How much investment has been made during the previous year relevant to asst. yr. 1984-85 may be a matter of enquiry, and the extent of income which may be ultimately assessed or found to be taxable is not relevant for the purpose of examining the question whether in the absence of excluded portion, there was material before the ITO, on the basis of which he could entertain belief about escapement of income from assessment relating to asst. yr. 1984-85.
The belief about actual amount of investment referable to previous asst. yr. 1983-84 is not necessarily to be entertained so as to provide a foundation of holding a belief that income of the previous year relevant to asst. yr. 1984-85 has escaped assessment. Even if it could be said that certain investments have been made during the previous year relating to the asst. yr. 1984-85 and which have been disclosed by the assessee during the relevant assessment year will justify ITO to hold a belief bona fidely that income for the asst. yr. 1984-85 has escaped assessment. The explanatory note of the assessee did contain the fact that investments were made in the house until 1983-84 relevant to asst. yr. 1984-85. It was not even the case of assessee that these investments were disclosed by him earlier and were already part of record and considered by the ITO during assessments of earlier years when such disclosure was made. In the absence of any such material, the asst. yr. 1984-85 being within 8 years from the date of issue of notice in February, 1993, the proceedings were validly initiated. There cannot be any doubt about it.
It is well settled and need no elaboration that adequacy and sufficiency of material on the basis of which AO could hold a belief about escapement of income from assessment before assuming jurisdiction to initiate proceedings under s. 147 cannot be subject-matter of review by any superior authority. We, therefore, answer question No. 1 in affirmative, that is to say in favour of the Revenue and against the assessee. Q. No. 2. “Whether in the facts and circumstances of the case, the Tribunal was right in holding the proceedings to be valid despite the fact that the approval of Dy. CIT was not obtained by the AO ?” About the question No. 2 as we have noticed above that the notices under s. 148 have been issued after expiry of four years from the end of the relevant assessment year in respect of which, proceedings were to be initiated. As per the provisions of s. 151 as they stood during the period notice under s. 148 was issued, the AO could not have initiated proceedings under s. 148 unless the Dy. CIT (subsequently substituted as Jt. CIT) was satisfied on the basis of reasons recorded by the AO that it is a fit case for initiating proceedings. The assessee has contended that since the action of the AO was not approved by Dy. CIT (Jt. CIT), the initiation of proceedings was invalid and for that reason also, the assessment founded on such ultra vires assumption of jurisdiction cannot be sustained.
14. Sec. 151 which existed as on the date the notices were issued which has been substituted w.e.f. 1st April, 1989 reads as under : “151(1). In case where an assessment under sub-s. (3) of s. 143 or s. 147 has been made for the relevant assessment year, no notice shall be issued under s. 148 by an AO, who is below the rank of Asstt. CIT, unless the Dy. CIT is satisfied on the reasons recorded by such AO that it is a fit case for the issue of such notice : Provided that, after the expiry of four years from the end of the relevant assessment year, no such notice shall be issued unless the Chief CIT or CIT is satisfied, on the reasons recorded by the AO aforesaid, that it is a fit case for the issue of such notice. [The following portion quoted in the judgment is part of s. 152, not s. 151—Ed.] : (2)(1) In an assessment, reassessment or recomputation made under s. 147, the tax shall be chargeable at the rate or rates at which it would have been charged had the income not escaped assessment. (2) Where an assessment is reopened under s. 147, the assessee may, if he has not impugned any part of the original assessment order for that year either under ss. 246 to 248 or under s. 264, claim that the proceedings under s. 147 shall be dropped on his showing that he had been assessed on an amount or to a sum not lower than what he would be rightly liable for even if the income alleged to have escaped assessment had been taken into account, or the assessment or computation had been properly made : Provided that in so doing he shall not be entitled to reopen matters concluded by an order under s. 154, 155, 260, 262, or 263.” A perusal of the aforesaid provision goes to show that in a case where an assessment order already existed for the relevant assessment year framed under s. 143(3) or s. 147, the AO below the rank of Asstt. CIT has no jurisdiction to commence the proceedings unless the Dy. CIT is satisfied on the reasons recorded by such AO that it is a fit case for issue of such notice. However, it also envisages where such initiation of proceedings takes place after expiry of four years from the end of the relevant assessment year, the satisfaction of the Chief CIT or the CIT is required to be there on the basis of reasons recorded by the AO before such initiation can take place by an officer. However, this condition is applicable only in case where the earlier assessment already exists. On the other hand, sub-s. (2) operates in the field, where there is no earlier assessment under s. 143(3) or s. 147. In such cases, the assessment proceedings are either to be initiated by the Dy. CIT in terms of s. 147 r/w ss. 148 and 149 or if such proceedings are to be initiated by an officer who is below the rank of Dy. CIT after the expiry of four years, then the satisfaction of Dy. CIT that it is a fit case for issue of such notice, on the basis of reasons recorded by the AO before proceedings can be initiated (is necessary).
17. This makes it clear that where no earlier assessment exists within four years, the AO himself can initiate proceedings. If the assessment proceedings are to be initiated after four years, it has to follow satisfaction of Dy. CIT about the fulfilment of conditions for initiating proceedings under s. 147 unless the Dy. CIT himself initiates the proceedings. However, if an earlier assessment exists, whether under s. 143(3) or under s. 147 and it does not include assessment under s. 143(1)(a) if the assessment proceedings are initiated by the AO who is below the rank of Asstt. CIT, satisfaction of Dy. CIT that it is a fit case for issue of such notice, is necessary before he can exercise authority within four years of the end of the assessment year in relation to which the proceedings are to be initiated. Beyond expiry of 4 years in case governed by s. 151(1), such satisfaction ought to be of the CIT or Chief CIT. However, if within four years of the end of the relevant assessment year, the proceedings are to be initiated by the Asstt. CIT or by an AO who is not below the rank of Dy. CIT where earlier assessment does not exist, the principal sub-clause of s. 151(1) or 151(2) does not apply. No satisfaction is required to be recorded by Dy. CIT where no earlier order exists and proceedings are to be initiated after expiry of four years from the end of relevant assessment year, then if the AO is below the rank of Dy. CIT, the Dy. CIT must be satisfied that it is a fit case for issue of such notice before AO could issue notice. However, in all cases where earlier assessment has taken place under s. 143(3) or s. 147, the initiation of proceedings after 4 years, whether by AO below the rank of Asstt. CIT or above the rank of Asstt. CIT, has to be subsequent to recording of satisfaction of CIT or Chief CIT on the basis of reasons recorded by the AO that it is a fit case for issue of such notice.
The common thread in all such cases is that initial satisfaction about the escapement of income, which requires initiation of proceedings under s. 147, must be of the AO himself. If the conditions under s. 151(1) or (2) require the satisfaction of Dy. CIT or Chief CIT or CIT as the case may be, before issuance of such notice, such satisfaction must also be only on the basis of the reasons recorded by the AO and not de hors it. That is to say the satisfaction recorded by the AO must be endorsed by the Dy. CIT, Chief CIT or the CIT as the case may be before the AO assumes jurisdiction. Satisfaction independent of the reasons recorded by AO is not envisaged. This clearly indicates that foundation of initiating the proceedings is the reason to belief held by AO. Reasons for holding such belief are to be recorded in writing by the AO. The satisfaction of the Dy. CIT or the CIT, as the case may be, has to be only about the fitness of case to be subject to proceeding by reassessment under s. 148 only on the basis of reasons recorded by AO. Apparently, the assessee had raised objection in relation to sub-s. (2) of s. 151. However, the Tribunal has reached this initial conclusion assuming that the case is governed by proviso to sub-s. (1) of s. 151 which requires the satisfaction of CIT or Chief CIT to be obtained before initiating proceedings after four years of expiry of the period from the end of the assessment year in relation to which the proceedings are to be initiated.
The Tribunal has not differentiated between sub-ss. (1) and (2). We are of the opinion that to the extent the Tribunal, without noticing the distinction between the cases where the earlier assessment under s. 143(3) or 147 existed, and where it did not, has made its observation, it was not justified. If that were so, the sub-s. (2) would be rendered redundant which permits the AO who is below the rank of Dy. CIT to initiate proceedings within four years of relevant assessment year where no proceedings under sub-s. (3) of s. 143 or s. 147 exists, even on that (without) satisfaction of Dy. CIT about fitness of case for issuing notice. It is only where no earlier assessment exists and proceedings are to be initiated after 4 years from the end of relevant assessment year that proceedings by an AO below the rank of Dy. CIT can be initiated only on the basis of satisfaction recorded by Dy. CIT on the basis of reasons recorded by such AO that it is a fit case for issue of such notice. There is no such inhibition if Dy. CIT himself is the AO who is initiating the proceedings under s. 151(2).
But the Tribunal has found firstly that such satisfaction by the CIT on the basis of the reasons recorded by the AO is existing and about which there is no dispute. It has also referred to the fact on the basis of record which has been placed before the Tribunal that the satisfaction or approval of CIT was sought by the AO through the Dy. CIT and the Dy. CIT has also recorded his satisfaction that it is a fit case for issue of notice before obtaining satisfaction of the CIT about the necessity of initiating proceedings under s. 147. Thus, from the findings of the Tribunal and about which there is no dispute, the satisfaction of Dy. CIT as well as CIT was recorded that it is a fit case in which proceedings under s. 147 can be initiated. It was so recorded on the basis of reasons recorded by AO for which he has sought approval. That being the position, whether the case falls under sub-s. (1) or sub-s. (2) of s. 151 conditions for initiating proceedings by the AO below the rank of Dy. CIT, have been shown to exist. If it is to be taken to be a case where no previous assessment under s. 143 or s. 147 exists, the satisfaction of Dy. CIT on the basis of reasons recorded by AO was sufficient for the purpose of initiating proceedings under s. 147. The fact that it has also received the approval of CIT would not invalidate the proceedings. In case the case of assessee fell within the purview of sub-s. (1) of s. 151, there is no dispute about the fact that the CIT’s approval for initiating proceedings under s. 147 was obtained before initiating proceedings in terms of proviso to sub-s. (1) of s. 151 also.
22. In view thereof, the conclusion of the Tribunal that there is no violation of s. 151 to vitiate the proceedings was correct. Accordingly, the question No. 2 is answered in affirmative, i.e., against the assessee and in favour of the Revenue.
23. Q. No. 3. “Whether in the facts and circumstances of the case, the Tribunal was right in holding the proceedings to be valid by holding that the service on the adult member of the family was a sufficient notice ?”
The third question relates to the propriety of service effected on adult member of the family. It was contended by the learned counsel for the assessee before the Tribunal that there was no proper service of notice under s. 148. The notice under s. 148 was served on adult son of the assessee . The Tribunal has found that the notices issued under the Act of 1961 are required to be served in the manner prescribed under the CPC. By referring to the provisions of s. 27 and order 5 of CPC, the Tribunal concluded that the service effected on the son of the assessee, who received the notice on his behalf as an adult member of his family and was residing with him, accords with the procedure prescribed for effecting service.
24. The contention raised by the assessee would have some merit if the assessee had not appeared and participated in proceedings and had raised issue about not receiving notice. In such event, it would have been required to consider in detail the consequence of not serving the notice directly on the assessee, and whether condition of service on adult member was shown to exist, if the notices were required not only to be issued but also to be served before expiry of period of limitation. In such case improper service or no service on assessee would have invalidated the proceedings. This is so because there was some controversy about the scope and ambit of expression “issue” used under s. 149 of the Act of 1961 in juxtaposition with s. 148. Whereas under s. 149, the expression has been used that “no notice under s. 148 shall be issued for the relevant assessment year” while prescribing limitation before which the proceedings under s. 147 are to be initiated, in s. 148 expression has been used that notice shall be served on the assessee before making assessment/ reassessment. Some of the Courts by reading ss. 148 and 149 together had come to the conclusion that expression “issue” under s. 149 has been used in comprehensive sense to include the process of service also to be completed before expiry of period of limitation prescribed under s. 149. However, this controversy was settled by the Supreme Court in R.K. Upadhyaya vs. Shanabhai P. Patel (1987) 62 CTR (SC) 17 : (1987) 166 ITR 163 (SC) noticing the distinction between requirement of ss. 148 and 149. Sec. 148 requires the service of notice before making assessment/reassessment/recomputation under s. 147, whereas s. 149 requires issuance of notice before the expiry of period of limitation for initiating proceedings. Noticing this distinction, the Court held that what is needed under s. 149 is that notice must be issued by the AO before the expiry of period of limitation provided under s. 149. However, it may be served on the assessee even after the expiry of the period under s. 149 but before assessment/ reassessment/recomputation under s. 147. Thus, the service of notice now becomes part of the mere procedure and not a condition precedent for initiating proceedings. The service of notice before expiry of period of limitation does not become part of assuming jurisdiction and any defect in service, if remains, it is a mere irregularity and does not affect the assessment proceedings, if otherwise no prejudice is caused to the assessee. The Court in the case of R.K. Upadhyaya vs. Shanabhai P. Patel (supra) has held that : “The scheme of the IT Act, 1961 so far as notice for reassessment is concerned, is quite different from that of the 1922 Act. A clear distinction has been made out between ‘issue of notice’ and ‘service of notice’ under the 1961 Act. Sec. 149 of the 1961 Act, which provides the period of limitation, categorically prescribes that no notice under s. 148 shall be issued after the period prescribed has lapsed. Once a notice is issued within the period of limitation, jurisdiction becomes vested in the ITO to proceed to reassess. Sec. 148(1) provides for service of notice as a condition precedent to making the order of assessment. Service, under the new Act, is not a condition precedent to conferment of jurisdiction on the ITO; it is a condition precedent only to the making of the order of assessment.”
25. Moreover in our opinion, the Tribunal was justified in coming to the conclusion by referring to the provisions of CPC r/w s. 282 of the IT Act, that notice was properly served. Sec. 282 postulates that a notice or requisition under this Act may be sent on a person named therein either by post or under the procedure prescribed under the CPC. Under a given circumstance, under the provisions of order 5, a notice can be served on any adult member of the family of the individual, who is residing with him. Therefore, a service on an adult member of the family of the person named in notice is not invalid per se. The object of notice being to inform the assessee to respond to the notice for participating in proceedings and availing the opportunity can assume importance. If the assessee fails to appear and participate in the proceedings and as a result he is precluded from doing so as a result of insufficiency or improper service, which has not reached him, it is not proper service at all, the question may assume importance. But if in response to notice served on adult member of his family, the assessee appears or participates in proceedings in compliance of notice, the manner of service of notice becomes irrelevant.
26. In the present case, the assessee has filed return in response to the notice served on his adult son calling upon him to file return and participated in the proceedings throughout, the service of notice on the individual himself being not a condition precedent for assuming jurisdiction nor a proper service before the expiry of period of limitation before initiating proceedings being a condition precedent for initiating a valid proceeding under s. 147 and the assessee having responded to notice betray that he has duly recorded summons served on his adult son. The service on the adult son of the assessee, who was residing with him has been rightly held to be proper by the Tribunal.
27. That being so, we answer the question No. 3 also in the affirmative in favour of the Revenue and against the assessee.
28. Q. No. 4. “Whether in the facts and circumstances of the case, the Tribunal was justified in holding the proceedings to be invalid on the ground that the period of less than 30 days was given to furnish the return of income despite the provisions of s. 292B of the Act ?” The last question may have some substance. but for the amendment in s. 148 with retrospective effect from 1st April, 1989 vide Finance Act, 1996.
29. The assessee has contended that the provisions of s. 148 as it existed on 15th Jan., 1993, the date when the notices were issued by the AO required that the assessee must be given a notice requiring him to furnish the return of his income within a specified period being not less than a period of 30 days thus clearly indicating that there cannot be any notice of less than clear 30 days for the purpose of filing return in response to the notice. However, the impugned notice under s. 148 required the assessee to file the return “within 30 days” instead of within any specified period expiring after 30 days. This was in clear violation of s. 148. The Tribunal has overcome this difficulty by resorting to s. 292B which was inserted on the statute book w.e.f. 1st Oct., 1975 which saves the return of income, assessment, notice, summons or other proceedings from being invalidated merely by reason of any mistake, effect or omission, if in substance and effect the same is in conformity or in regard with the purpose of the Act.
30. The High Courts of Bombay, Assam, Kerala, Allahabad have held that requirement of giving notice of not less than 30 days is a mandatory requirement for valid proceedings to follow and the notice which gave less than clear 30 days time for submission of return by using the word “within 30 days”, further proceedings cannot be validly founded.
31. However, we need not dilate into the controversy in view of the retrospective amendment by which the words “not being less than 30 days” have been omitted from s. 148 w.e.f. 1st April, 1989. As a result of this amendment, it must be held that as on the date the notices were issued, i.e., on 15th Jan., 1993, amended provisions were in force and it did not require a notice specifying the period of filing return to be “not less than 30 days”. It only requires that the assessee may be required to file a return within the period specified in the notice. Thus, the notice requiring the assessee to file return within 30 days was in accordance with s. 148 as it must be deemed to be in force w.e.f. 1st April, 1989 and in force as on the date notice was issued. There was no violation of s. 148 in respect of specified period within which the return is to be submitted.
The principle is well settled that where the proceedings are pending at any stage and law which is to be applied to the facts of the case is amended retrospectively, the same has to be noticed and given effect to which matter operates against the ordinary principle as the validity of a transaction has to be examined as on the date the transaction has taken place.
In CIT vs. Straw Products Ltd. (1966) 60 ITR 156 (SC), the Taxation Laws (Merged States) (Removal of Difficulties) Order 1949 came to be amended with retrospective effect by the Taxation Laws (Merged States) (Removal of Difficulties) Order 1962. A reference was pending before the Supreme Court requiring reference to Order 1949. The Court held that it was the duty of the Supreme Court to answer the reference in accordance with the amendment unless the question referred by the Tribunal was not couched in terms of sufficient amplitude to cover an inquiry into the question in the light of the amendment.
In view of the aforesaid, we do not consider it necessary to go into the question whether specifying a period in the notice requiring the assessee to file return as within 30 days and not giving him the clear margin of 30 days for filing the return when the law required it to be not less than 30 days, was in breach of condition precedent which was not curable under s. 292B. Question No. 4 is thus answered in negative that is to say against the assessee and in favour of Revenue.
Accordingly, all the four questions are answered against the assessee and in favour of the Revenue. In the facts and circumstances of the case, there shall be no order as to costs.
[Citation : 295 ITR 403]
