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Highway Construction Co. (P.) Vs. Income-tax Officer - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Kolkata
Decided On
Judge
Reported in(1983)4ITD545(Kol.)
AppellantHighway Construction Co. (P.)
Respondentincome-tax Officer
Excerpt:
determination of tax on a sheet of paper and on form itms 150a within a period of limitation instead of assessment order itself does not make assessment invalid.where the assessment is made under section 143(3), it should contain determination of tax payable by the assessee or amount refundable to it, without which the assessment order would be invalid. the determination of tax on the notice of demand will not fulfill the said requirement. the determination of tax on any paper within the period of limitation would, however, fulfill the requirement of section 143(3)(a) as no form of assessment order is prescribed. in the instant case, the income tax officer determined the tax on a plain paper and on form itns 150-a within period of limitation and thus complied with the provisions of.....
Judgment:
Determination of tax on a sheet of paper and on Form ITMS 150A within a period of limitation instead of assessment order itself does not make assessment invalid.

Where the assessment is made under section 143(3), it should contain determination of tax payable by the assessee or amount refundable to it, without which the assessment order would be invalid. The determination of tax on the notice of demand will not fulfill the said requirement. The determination of tax on any paper within the period of limitation would, however, fulfill the requirement of section 143(3)(a) as no form of assessment order is prescribed. In the instant case, the Income Tax Officer determined the tax on a plain paper and on Form ITNS 150-A within period of limitation and thus complied with the provisions of section 143(3)(a). The mere failure to forward the impugned two sheets to the assessee was a curable defect or omission and could not invalidate the assessment. The assessment made by the ITO was therefore, a valid assessment.

1. The assessee is a private limited company and it is engaged in the business of builders, masonry and general construction works. The assessment for the assessment year 1975-76 was completed by the assessing officer under Section 143(3) of the Income-tax Act, 1961 ('the Act'), on 30-3-1978. The assessee was served with the assessment order and a demand notice duly signed by the ITO of the same date. But the assessee did not get any paper indicating the determination of tax payable by the assessee on its total income under Section 143(3). The assessee took a ground before the AAC that as the ITO has not determined the tax payable by the assessee, the order passed by the ITO was invalid. The assessee relied on S. Mubarik Shah Naqshbandi v. CIT [1977] 110 ITR 217 (J & K) and the Tribunal decision of the Delhi Bench in the case of Smt. Sushilla Devi Rajendra Lal v. ITO in IT Appeal No.4756 (Delhi) of 1975-76. The Bench hearing the case, however, found another decision of the Calcutta Tribunal in the case of ITO v. D.K.Sen in IT Appeal No. 251 (Cal.) of 1976-77, wherein, the Calcutta Bench after considering the decision of J & K High Court in S. Mubarik Shah's case (supra), took contrary view. Accordingly, the matter was referred to the President for constituting a Special Bench.

2. It will be relevant to mention that on a point relating to the assessee's appeal, Special Bench was constituted. But the departmental appeal lying before the Bench was disposed of by the order of the Tribunal dated 15-9-1980 in IT Appeal No. 12 (Gauhati) of 1980. The appeal of the department was on the limited issue that the AAC was not justified in allowing a relief of Rs. 48,896 in contract account. The appeal of the department was set aside by the Tribunal. Thus, the matter is being disposed of by the Special Bench (sic).

3. The first ground taken by the assessee is that the AAC erred in holding that even though the ITO had not determined the tax payable in the assessment order, the assessment order could not be held invalid.

The necessary facts relating to the above issue are that the assessment was completed by the ITO on 30-6-1978. The ITO computed the total income of the assessee at Rs. 1,39,080. A demand notice of the same date duly signed by ITO was issued indicating the net tax payable by the assessee at Rs. 1,00,247. The demand notice contained the calculation of tax. The dispute was raised by the assessee for the first time before the AAC. The assessee before the AAC relied on S.Mubarik Shah's case (supra) as well as on the order of the Tribunal in Smt. Sushilla Devi's case (supra). The AAC on the argument of the assessee, stated that the assessment record had been verified on this point. It is true that the computation of tax payable had not been shown on the body of the assessment order itself, but the computation had been worked out on a special form in ITNS 150A which was actually a correct form for working out the tax payable or refund due to the appellant. Since the demand worked out had been reflected in the demand notice issued to the assessee, the assessment order cannot be said to be invalid.

4. A preliminary objection by way of statement of facts was raised by Shri R.N. Bara, the senior departmental representative. It was stated that the departmental appeal was disposed of by the Tribunal in IT Appeal No. 12 (Gauhati) of 1980 on 5-2-1980. The reference filed by the assessee was rejected by the order of the Bench in RA No. 113 (Gauhati) of 1980, dated 26-5-1981. As the appeal has been disposed of by the Tribunal on 5-9-1980, the hearing of the piecemeal appeal again would be infructuous. It was stated by Shri Bara that once the assessment was set aside by the Tribunal on the departmental appeal and the assessee finally accepted the order of the Tribunal, the order of the Tribunal became final and, therefore, the Tribunal cannot rehear the appeal of the assessee. He relied on R. Gopal Ramnaryan v. Third ITO [1980] 126 ITR 369 (Kar.). He, in this connection, referred to the orders of the Tribunal and reference application in the case of the assessee, the head-notes in Guduthur Bros. v. ITO [1960] 40 ITR 298 (SC), Murlidhar Jalan v. ITO [1961] 41 ITR 80 (Assam), CIT v. Saharia Krishivan Pratisthan Ltd. [1981] 130 ITR 383 (Gauhati), CIT v. Smt. Krishwanti Punjabi [1981] 7 Taxman 195 (Cal.) and Mohendra J. Thacker & Co. v.CIT.5. Shri Tandon, the counsel of the assessee, referred to page 46 of the supplementary paper book, which is Form No. 36. He referred to the grounds of appeal of the department and stated that the subject-matter of appeal of the department was the relief of Rs. 48,896 allowed by the AAC. The Tribunal can only give its finding on the subject-matter of appeal. If the order of the Tribunal in IT Appeal No. 12 (Gauhati) of 1980 is read along with the subject-matter of appeal, the order of the ITO was only set aside on that issue. The assessee has filed a separate appeal before the Tribunal. Therefore, the Tribunal will have to dispose of the appeal of the assessee irrespective of the fact as to what decision had been taken in the case of the department's appeal.

Shri Tandon, in this connection, placed reliance on S.P. Kochhar v. ITO 1983 Tax LR 181 (All).

6. The fact is that against the order of the AAC, the assessee as well as the department both filed appeals before the Tribunal. The assessee was in appeal on the various grounds and it also took a legal objection that the assessment made by the ITO was invalid, because the ITO did not determine the tax payable by the assessee as required under Section 143(3) in the assessment order. The department, on the other hand, was aggrieved on the relief of Rs. 48,896 allowed by the AAC in the contract account. Both appeals were taken up together. However, the Bench found contrary decision on the legal ground of the assessee and, consequently, the reference was made to the President for constituting a Special Bench on that issue. The Tribunal was of the view that the department's appeal can independently be disposed of and, accordingly, the Tribunal took up the appeal of the department. It had been correctly argued that the Tribunal cannot travel beyond the subject-matter of the appeal. Section 254 of the Act provides that the Tribunal may, after giving both parties to the appeal an opportunity of being heard, 'pass' such orders thereon as it thinks 'fit'. The word 'thereon' restricts the jurisdiction of the Tribunal to the subject-matter of appeal and the subject-matter of appeal is constituted by the original grounds of appeal or such additional grounds as raised by the appellant and admitted by the Tribunal. The power to pass such orders as the Tribunal thinks fit can be exercised only in relation to the matters that arise in the appeal. It is not open to the Tribunal to adjudicate or give a finding on a question which is not in dispute and which does not form the subject-matter of appeal. The preliminary objection arose because of the order of the Tribunal in IT Appeal No. 12 (Gauhati) of 1980 on departmental appeal.

The following are the grounds of appeal of the department: 1. For that the learned AAC erred in allowing relief of Rs. 48,896 in the contract account.

3. For that the decision of the AAC on the above point may be reversed and the addition may be restored.

7. The Tribunal concluded the matter on the above subject in the following words: The AAC in granting relief to the assessee has been very categorical that there was no work-in-progress. In view of these contra findings by the lower authorities, the facts of the case merit, that we set aside the orders of the lower authorities and restore the case to the file of the ITO, which we do, with the specific direction that the assessment in the case of the assessee, be framed afresh in accordance with law and after giving a reasonable opportunity of being heard to the assessee and specifically in the light of this categorical finding of fact by the AAC that there was no work-in-progress. This fact finds mentioned in para 7 of the impugned order of the AAC. The ITO having based the addition mainly on this score and the AAC having granted relief to the assessee on this very score, this aspect of the case requires to be discussed and thrashed afresh and for the purpose the ITO will call for additional evidence from the assessee if necessary and the assessee shall be at liberty to place on the file of the ITO any further evidence, the assessee so chooses.

It is clear from the above extract that the assessment was set aside.

However, the 'set aside' will have to be read in the context of the subject-matter of the appeal of the department. The department was in appeal only on a limited issue of relief of Rs. 48,896 allowed by the AAC in the contract account. Therefore, the Tribunal's order will have to be read in the light of the subject-matter of appeal. It will be relevant to mention the observation of the Supreme Court in CIT v.Walchand & Co. (P.) Ltd. [1967] 65 ITR 381: ... It is necessary to emphasize that, though the Tribunal is not a court, it is invested with judicial power to be exercised in manner similar to the exercise of power of an appellate court acting under the Code of Civil Procedure. Authority to 'pass such orders thereon as it thinks fit' in Section 33(4) of the Income-tax Act, 1922, is not arbitrary: the expression is intended to define the jurisdiction of the Tribunal to deal with and determine questions which arise out of the subject-matter of the appeal in the light of the evidence, and consistently with the justice of the case. In the hierarohy of authorities the Appellate Tribunal is the final fact-finding body: its decisions on questions of fact are not liable to be questioned before the High Court. The nature of the jurisdiction predicates that the Tribunal will approach and decide the case in a judicial spirit and for that purpose it must indicate the disputed questions before it with evidence pro and con and record its reasons in support of the decision. The practice of recording a decision without reasons in support cannot but be severely deprecated.

If it is read so, the assessment was set aside only on the limited issue. The appeal of the assessee was not heard at all and the assessee had every right of a finding on each of the questions raised by it.

Therefore, if the assessee's appeal is disposed of, it would not be infructuous as urged by the revenue.

8. The matter can be examined even from a different angle. The order was set aside with a specific direction by the Tribunal that the assessment in the case of the assessee be framed afresh in accordance with law. Therefore, if the law does not permit the refraining of the assessment, even if the objection raised by the department is presumed to be correct, the assessment cannot be framed. The assessee challenges that the assessment order passed by the ITO under Section 143(3) was invalid, because the ITO did not determine the tax payable by the assessee as required under Section 143(3). If the matter is considered from this angle, there is nothing wrong if the assessee's appeal is heard, even though the department's appeal has been disposed of as early as on 5-9-1980. The conclusion above had been arrived at after going carefully through the various case laws referred to by the departmental representative, Shri R.N. Bara.

9. It would not be out of place to mention that two separate appeals were filed, one by the assessee and other by the department. The department was aggrieved on the order of the AAC by which a relief of Rs. 48,896 was allowed to the assessee, whereas, the assessee was aggrieved on the various grounds which were decided against it. The appeal of the department was, no doubt, decided earlier, but it should not prejudice the interest of the assessee. The assessee had inherent right of appeal under Section 253 of the Act, against the order of the AAC. If the argument of the department is accepted, the appeal of the assessee would be nullity which is not fair. The above view is supported by the decision in Pathikonda Balasubba Setty v. CIT [1967] 65 ITR 252 (Mys.). The facts of the above case are that in computing the assessment for 1949-50, the ITO estimated the gross profit under two of the various businesses carried on by the assessee, viz., buying and selling of groundnut kernel and manufacturing and selling of groundnut oil and oil-cake. The ITO found suspicious entries but did not make any additions specifically for that purpose but used them as supporting the additions made to the gross profits. A further addition of Rs. 20,000 was made on account of unexplained stock. On appeal, the AAC gave substantial relief on the addition to the gross profit but did not interfere with the addition of Rs. 20,000. The Tribunal, on appeal by the department, set aside the entire order of the AAC and directed him to decide the appeal afresh. The High Court, on reference, held that: (i) the powers of the Tribunal are limited to the subject-matter of the appeal; (ii) the Tribunal had no power to make an enhancement beyond the figure fixed by the officer; and (iii) the Tribunal could only deal with the two additions relating to the gross profit but not with the other addition relating to unexplained stock and hence had no jurisdiction to set aside the entire order of the AAC. As the appellate power is a power which is conferred by statute, both its existence as well as its extent has to be gathered from the relevant statutory provision. The fundamental idea is that an appellant seeks a relief from an appellate court, and not detriment to himself. Even under the general provisions of the law of procedure, the worst detriment which an appellate court may visit on an appellant is to dismiss the appeal with a direction in an appropriate case to pay costs to the opposite side. An order adverse to the interests of the appellant--adverse in the sense that it takes away from him a benefit which he has already acquired under the order appealed from--is possible only be means of an order made either upon a cross-appeal filed by the other side or on the basis of a memorandum of cross-objections presented by him wherever the law permitshim to do so.

Consequently, the objection taken by the department is overruled and the assessee's counsel was directed to take up the case on merit.

10. The first objection of the assessee is that the order passed by the ITO under Section 143(3) on 30-3-1978 is invalid. The assessee's counsel, Shri Tandon, referred to the resume of arguments submitted on 21-7-1980 at pages 1 to 5 of his first paper ,book. He particularly referred to Section 143(3)(a) and urged that according to Section 143(3)(a), the ITO should not compute only the total income or loss of the assessee in the assessment, but he should also determine the sum payable by the assessee or refundable to it on the basis of such assessment. Shri Tandon, the counsel of the assessee, in this connection, emphasized on the word 'shall' and urged that it was mandatory for the ITO to determine the sum payable by the assessee in the assessment order. He also referred to Section 156 of the Act and urged that if the tax payable by the assessee had been determined in a notice of demand, it would not satisfy the requirement of Section 143(3)(a). The counsel, in this connection, referred to the decision of the Hon'ble J & K High Court in S. Mubarik Shah's case (supra), and also referred to the provisions of Sections 143(3)(a) and 144 under which the Hon'ble J & K High Court gave their decision. The counsel pointed out that the provisions of Sections 143(3)(a) and 144 are in pari materia and, therefore, the decision could not be distinguished.

He referred to the decision of the Delhi Bench of the Tribunal in the case of Smt. Sushilla Devi (supra), and the contrary decision of the Calcutta Bench of the Tribunal in the case of D.K. Sen (supra).

Referring to the contrary decision of the Tribunal, the assessee's counsel stated that the only decision on the issue is available of J & K High Court which has a binding effect in view of the decision in CIT v. Smt. Godavaridevi Saraf [1978] 113 ITR 589 (Bom.).

11. The counsel further referred to Rule 15 (page 48), Form No. 8 under Rule 15 (page 49), a CBDT Circular No. 28/16/64-91(B), dated 15-9-1964 by which Form No. 8 under Rule 15(2) was deleted (page 20) and it was indicated by the Board that details of tax computation will be given in the assessment order itself. The details of tax computation will be given on the reverse side of the demand notice in the case of non-company assessees and in the assessment order itself in the case of companies. The assessee also referred to a circular dated 14-1-1977 (on page 21) in which direction was given that the computation of tax should invariably be indicated in the body of the assessment order. By referring these circulars, Shri Tandon, the counsel of the assessee, stated that even if the tax computation is given in ITNS 150A, it would not satisfy the requirement of Section 143(3)(a). He referred to a decision in CIT v. Himalaya Drug Co. [1982] 135 ITR 368 (All.) and urged that it has been held that Form ITNS 150A is not an order. He further referred to the decision in CIT v. Balkrishna Malhotra [1971] 81 ITR 759 (SC). The counsel also referred to Section 292B of the Act and the circular of the department No. 179, dated 30-9-1975 (page 55).

He stated that neither there was any defect nor omission in the assessment. But the assessment was not made in accordance with the provisions of Section 143(3)(a) and, therefore, no help can be taken from Section 292B. He relied on Umashankar Mishra v. CIT [1982] 136 ITR, 330 (MP). Lastly, he urged that the only decision of J & K High Court in S. Mubarik Shah (supra) is available on the point which is binding in view of the decision in Godavaridevis case (supra) and, hence, the order of the ITO should be held to be invalid. He also placed reliance on Jai Prakash Singh v. CIT [1978] 111 ITR 507 (Gauhati).

12. Shri R.N. Bara, the senior departmental representative, on the other hand, referred to his paper book commencing from page-A to W and particularly the order of the Bangalore Bench of the Tribunal in Miscellaneous Petition Nos. 11 & 14 (Bang.) of 1981 and in IT Appeal No. 588 (Bang.) of 1977-78, Tarak Nath Paul v. CWT, CIT v. Mattoo Worsted Spg. & Wvg. Mills [1983] 139 ITR 1020 (J&K), S.V. Sundaresan v.ECED, Santbaba Mohan Singh v. CIT [1973] 90 ITR 197 (All.), Km. Asha Rani Jain v. ITO [1982] 1 SOT '483 (Delhi), Arundhati Balkrishna v. CIT [1982] 138 ITR 245 (Guj.), etc., and urged that the order passed by the ITO under Section 143(3) was not invalid. Shri Bara filed photostat copy of a plain paper containing determination of tax and signed by the ITO on 30-3-1978, computation of tax in Form ITNS 150A on the same date and duly signed by the ITO and the copy of the demand notice, dated 30-3-1978 which contained the tax determined by the ITO and payable by the assessee. Shri Bara urged that the Act has not prescribed any form for the assessment order. The assessment order and demand notice had been given to the assessee and the demand notice contained the tax payable by the assessee as determined under Section 143(3)(a). The ITO on the same date had determined the tax payable by the assessee not only in Form ITNS 150A but he has also determined the tax payable on a plain sheet which has been duly signed by the ITO as on 30-3-1978. Shri Bara, therefore, urged that the ITO has complied with the requirement of Section 143(3)(a) and the decision of J & K High Court in S. Mubarik Shah's case (supra).

13. He further referred to Section 292B and said that even if the sheet containing the tax determined by the ITO was not given to the assessee, it was only a curable defect under Section 292B. He, in this connection, again referred to the decision of the Bangalore Bench of the Tribunal in Miscellaneous Petition Nos. 11 & 14 (Bang.) of 1981 and in IT Appeal No. 588 (Bang.) of 1977-78. He further referred to the decision of Mohendra J. Thacker & Co. (supra), and urged that as the assessment includes the determination of tax on separate sheet, the order could not be said to be invalid, when the demand notice containing the determination of tax was duly served upon the assessee on 30-3-1978. Shri Bara distinguished all the cases relied upon by Shri Tandon, counsel of the assessee, and urged that all these cases particularly the decision in S. Mubarik Shah's case (supra), are not applicable to the facts of the case. He urged that the decision in S.Mubarik Shah (supra) was passed under Section 144, whereas, the present assessment had been passed under Section 143(3). Even otherwise, necessary compliance of the High Court order had been made by the ITO and, therefore, the order passed by him is not a bad order in law.

14. Shri Tandon, the counsel of the assessee, replying to the arguments of Shri Bara urged that Section 292B does not help in any way, because there was no defect or omission in the assessment. The assessment was not made according to the requirement of Section 143(3)(a). He referred to the record of the department and was satisfied that there was a sheet containing the tax determination which was duly signed by the ITO as on 30-3-1978. He also verified another tax calculation done in Form ITNS 150A. However, he said that the tax calculation done by the ITO in Form ITNS 150A is not in accordance with law and another sheet which contained the tax calculation was never given to the assessee and, therefore, the order passed by the ITO was invalid in view of the decision in S. Mubarik Shah's case (supra).

15. The assessee is a private limited company engaged in business of builders and general construction work. The assessment order for the assessment year 1975-76 was passed by the ITO on 30-3-1978 and a notice of demand of the same date was prepared which contained the tax payable by the assessee on the basis of the assessment. The assessment order and the demand notice were duly served upon the assessee for which there is no dispute. The objection of the assessee is that the assessment was not made by the ITO in accordance with the provisions of Section 143(3)(a). The ITO did not determine the tax payable by the assessee on the basis of the total income computed by him in the assessment order, which is invalid. Therefore, the question for consideration is whether on the facts and in the circumstances of the case, the order passed by the ITO was invalid in view of Section 143(3)(a) read with the decision in S. Mubarik Shah's case (supra). It would be relevant at this stage to quote Section 143(3)(a): (3) On the day specified in the notice issued under Sub-section (2), or as soon afterwards as may be, after hearing such evidence as the assessee may produce and such other evidence as the ITO may require on specified points, and after taking into account all relevant material which he has gathered,-- (a) in a case where no assessment has been made under Sub-section (1), the ITO shall, by an order in writing, make an assessment of the total income or loss of the assessee, and determine the sum payable by him or refundable to him on the basis of such assessment; If the above section is read, possibly there could not be any dispute on these facts that the assessment under Section 143(3)(a) is not only of the computation of total income or loss of the assessee, but the assessment order must contain the determination of the sum payable by the assessee or refundable to him on the basis of the assessment.

Therefore, the assessment had two parts when it is completed by the ITO. The first part is the computation of total income and/or loss and the second part is the determination of tax payable by the assessee or the amount refundable to him. The third stage is the service of notice of demand under Section 156. In the assessee's case, the assessment order containing the computation of total income had been made even according to the assessee and had been served upon it. The notice of demand under Section 156 had also been served which contained the tax payable by the assessee. A photostat copy of the notice of demand was filed in course of the hearing. The completion of 1st and 2nd stage is necessary for the completion of an order under Section 143(3)(a) otherwise the order would be bad. The only decision on the issue available is of J & K High Court in S. Mubarik Shah's case (supra) wherein it has been held that the assessment is invalid even though the tax payable by the assessee had been indicated in the notice of demand.

It has also been stated that the provision f Section 144 though is procedural but it is mandatory. Another decision of the Hon'ble Calcutta High Court in CIT v. Smt. Krishwanti Punjabi [1983] 139 ITR 703 is also available on the subject in which the decision of the J & K High Court in S. Mubarik Shah's case (supra) has been referred. The Hon'ble Calcutta High Court has expressed opinion similar to the J & K High Court, but, however, the Hon'ble Calcutta High Court has stated that if there is actual determination of tax payable by the assessee within the time stipulated under Section 153, there is no further statutory requirement and that IT 30 (ITNS 150A) should be signed by the ITO. The J & K High Court bad not expressed any opinion on ITNS 150A/IT 30. Both the High Courts are unanimous on the point that the computation of income and/or loss under Section 143(3)(a) does not fulfil the requirement unless there is determination of tax on the income computed by the ITO.16. Reference may be made to the decision in Mohindra J. Thaker Co.'s case (supra). The assessee's counsel rightly on this issue referred to the decision in Godavaridevi's case (supra) where the Tribunal has got no option but to follow a decision of a High Court if no contrary decision is available. The Hon'ble High Court has observed-- . . . an authority like an Income-tax Appellate Tribunal, acting anywhere in the country, has to respect the law laid down by the High Court, though of a different State, so long as there is no contrary decision of any other High Court on that question . ...

Similar observation is also available in CIT v. Vrajlal Manilal & Co.

[1981] 127 ITR 512 (MP), CIT v. U.P. Hotel-Restaurant Ltd. [1980] 123 ITR 626 (All.) and T. Sundaresa Mehta v. CED [1981] 127 ITR 107 (Mad.).

17. The provisions of Sections 143(3) and 144 were carefully examined as urged by the respective parties. The necessity of going through the above provisions was felt because the decision of the J & K High Court (supra) was given in the assessment which was completed under Section 144, whereas, the assessment of the assessee had been completed under Section 143(3). After the examination of the provisions, the view expressed by the assessee's counsel is accepted. The provisions of Section 144 and Section 143(3)(a) are pari materia and requirements of the two sections regarding completion of assessment are the same.

Therefore, simply because the assessment of the assessee is made under Section 143(3), it could not be said that the decision of J & K High Court was not applicable. After considering the arguments, various case laws, decisions of the Tribunal, decisions of the High Courts in S.Mubarik Shah (supra), Krishwanti (supra), Mohendra J. Thacker Co.

(supra) and Godavaridevi (supra) and Sections 143(3)(a) and 144, it is concluded that-- (i) the assessment under Section 143(3) should not contain only the computation of income and/or loss but also contain determination of tax payable by the assessee or amount refundable to it; (ii) as no form of assessment order is prescribed, if the tax is determined on any paper within the period of limitation, it would fulfil the requirement of Section 143(3); and (iii) if the tax payable or refundable is determined on the notice of demand, which is served within the period of limitation, it will not fulfil the requirement of the above section.

18. The matter does not rest on the conclusion given above. The question in dispute will have to be considered on facts. The total income in this case as required under Section 143(3)(a) was computed by the ITO under his signature on 30-3-1978. The record of the revenue was perused by the Bench and an opportunity was allowed to Shri Tandon, the counsel of the assessee. It was found that the tax as required under Section 143(3)(a) was determined by the ITO on a plain sheet of paper under his signature on 30-3-1978. Apart from the determination of tax payable by the assessee made on a plain sheet of paper, the tax was also determined in Form ITNS 150-A under the signature of the ITO as on 30-3-1978. The notice of demand dated 30-3-1978 containing tax payable by the assessee is served upon the assessee but, however, that had not been taken as a valid compliance of Section 143(3)(a) by the J & K High Court (supra). Shri Tandon objected that the order in Form ITNS 150A is not an order and he relied on Himalaya Drug's case (supra). The case cited by Shri Tandon is distinguishable, because that related to the levy of interest under Section 217 for which no separate order is passed. He has also referred to certain circulars of the department to show that preparation or determination of tax in Form No. 8/ITNS 150-A or IT 30 was dispensed with and it was required to determine the tax payable or refundable on the assessment order. The form of an assessment order is not prescribed. If the argument of the assessee for the sake of convenience is accepted, the tax determined may not be in any form but it may be even on a piece of paper. It may be simple or otherwise. Therefore, apart from the fact that in the case of the assessee tax was determined by the ITO as on 30-3-1978 on a plain paper, it was also determined on another sheet and on the same date.

The Form ITNS 150A which was used by the assessing officer may be taken just a rough paper on which the calculation of tax payable by the assessee was done on the same date. Under the circumstances, the necessary compliance of Section 143(3)(a) had been made by the ITO as laid down in S. Mubarik Shah and Krishwanti case (supra). The tax determined by the ITO on two sheets, as referred to above, had not been forwarded to the assessee. In plain words, the assessee had been forwarded a part of the assessment order along with notice of demand and another part of the order which contained determination of tax was not served on the assessee though it was made on 30-3-1978 within the period of limitation. Section 292B was introduced by the Taxation Laws (Amendment) Act, 1975 with effect from 1-10-1975 and the purpose of the section was that the assessment shall not be invalid merely by reason of any mistake, defect or omission. The assessment has been made under Section 143(3)(a), but there is an omission that the tax determined by the ITO had not been forwarded to the assessee. In view of this specific provision, the assessment made by the ITO shall not be invalid merely on the ground that a part of the assessment order containing determination of tax was not forwarded to the assessee. It is only a curable defect and/or omission. Therefore, on facts it is held that the assessment made by the ITO on 30-3-1978 was a valid assessment.


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