1968 PLP 401 (PTD)

The Appellate Assistant Commissioner as well as the Tribunal rejected the plea of limitation. There was a direct appeal to the Tribunal against this assessment order made on the 22nd September 1960 and the Tribunal, inter alia, rejected the plea of the law of limitation and it also rejected the prayer for referring the question to this Court, for, in its opinion on the facts found by the Tribunal no question of law arose out of the order of Tribunal. This Court, however, directed the Tribunal to refer the question set out at the outset. The learned Advocate for the assessee, submits that the, assessment in respect of the year in question was barred on the 1st April 1956: His contention is that the assessment was made 4 years after it was barred, that is in 1960. He, therefore; claims that the assessment should be set aside for in his submission section 34(2) of the Act does not save the limi tation in this case. His argument is founded on the ground that the subject‑matter of the present assessment is different from that of the original assessment. Mr. Afzalul Haque, learned Advocate appearing for the Commissioner of Income-tax, on the other hand strenuously argues that the impugned assessment has been kept alive by virtue of the last proviso of subsection (2) of section 34 of the Act in view of the different. orders passed by the appellate authorities under, sections 31 and .33 of the. Act. On a reference to the impugned assessment order made oil the 22nd September 1960; we find that the year of assessment is 1951‑52 and the accounting period is the year ending on the 31st March 1951. The impugned assessment was therefore made under sec tion 23 (3) read with section

31. Section 31 deals with the power of the Appellate Assistant Commissioner to hear the appeal and makes various' provisions relating to the appeals preferred before it. In its order dated 29th August 1961, dismissing the appeal, the Tribunal observed: "The effect of the decisions of the Appellate Authorities was that the assessment proceedings were kept alive. The Income‑tax Officer was right in making the final assessment for the tax year 1951‑52 on the basis of the accounts as maintained by the assessee." Referring to the accounting year on the basis of which the present assessment was made the Tribunal observed in the said judgment: "The Income‑tax Officer drew the attention of the assessee to the fact that the assessment for 1951‑52 was still open by virtue of the direction of the Appellate Assistant Commissi oner. The authorised agent appeared and stated that the books of accounts for the year ended 31st March 1951, were not traceable: The Income‑tax Officer accordingly made the assessment for the third time for the tax year 1951‑52 practically on the basis of the audited Profit and, Loss account in respect of the jute business, the accounting year being the year ended 31st March 1951 This was the accounting year which the assessee himself claimed was his normal accounting year at that time." It will, therefore, appear from the facts noticed above that the present assessment was made as a result of the insistence of the assessee that the accounting year followed by it should be considered for the assessment of the relevant year and on this, amongst other, grounds, the appeals were preferred before the Appellate Authorities and this is how the Income‑tax had to make the assessment for the third time in this case. Keeping these facts in view, we are to refer to the proviso to subsection (2) of section

34. Subsection (2) of section 34 is as follows :‑ "No order of assessment under section 23 or the assessment or reassessment under subsection (1) of this section shall be made after the expiry, in any case in which the assessee has concealed the particulars of his income or deliberately furnished incorrect particulars of such income, of four years from the end of the year in which the income, profits or gains were first assessable." The proviso to the said subsection (2) as it stood during the relevant period was as follows: "Provided that nothing contained in this subsection shall apply to a re‑assessment made in pursuance of an order under section 31, 33, '66 or section 66‑A." The impugned assessment made on the 22nd September 1960, was done in pursuance of the order of the Appellate Assistant Commissioner and the Tribunal. That being so, section 31 is attracted to the facts of this case. The assessment was made in' pursuance of the said order and therefore it was a re‑assessment and as such the impugned order is clearly saved by the proviso to subsection (2) of section 34 of the Act. We are, therefore, clearly of opinion that the impugned assessment is not barred by law of limitation and the question is answered in the negative. The assessee will pay costs to respondent, Commissioner of Income‑tax. A. H. KHAN, J. ‑I agree. S. Q. Question answered in the negative.