Ajit K. Sengupta, J.
1. In this reference under Section 256(1) of the Income-tax Act, 1961, the Tribunal has referred two questions, one relating to the assessment year 1981-82 and the other relating to 1982-83.
2. The first question that relates to the assessment year 1981-82 is referred at the instance of the assessee and is as under :
'Whether, on the facts and in the circumstances of the case, the Tribunal ought to have held that the assessment has been made after the expiry of the period of limitation prescribed by Section 153 ?'
3. The facts leading to the question are as under :
The return for the assessment year 1981-82 was filed on July 30, 1983. As there was a variation between the income shown in the return and the income proposed, the Income-tax Officer drew up a draft under Section 144B(1) of the Income-tax Act, 1961, on September 6, 1983. The assessee submitted its objection by a letter dated September 12, 1983. The Inspecting Assistant Commissioner communicated his directions on September 24, 1984, which were received by the Income-tax Officer on the same day. The assessment was made on September 25, 1984. The normal period within which the assessment ought to have been made expired on March 31, 1984.
4. The assessee's contention was that Clause (iv) of Explanation 1 to Section 153 is not available in this case. According to the assessee, Clause (iv) of the said Explanation 1 requires that the period commencing from the date on which the Income-tax Officer forwards the draft order and ending with the date on which he receives the directions from the Inspecting Assistant Commissioner shall not exceed 180 days. If the period as aforesaid does exceed 180 days, Clause (iv) of the said Explanation 1 does not come into operation. In the present case, the date on which the Income-tax Officer forwarded the draft order is September 6, 1983, and the date on which he received the directions is September 24, 1984, a period of 385 days. The Commissioner of Income-tax (Appeals) did not accept this contention of the assessee. Before the Tribunal, it was urged that the finding given by the Commissioner is incorrect.
5. The Tribunal, following its earlier order, maintained the order of the Commissioner of Income-tax (Appeals) on this point.
6. The assessee's contention is that the extension of limitation by 180 days in terms of Clause (iv) of Explanation 1 below Section 153 does not come into operation, where the Inspecting Assistant Commissioner takes more than 180 days. The same contention has been reiterated before us ; Clause (iv) of Explanation 1 reads as under :
'In computing the period of limitation for the purposes of this section,--.... (iv) the period (not exceeding one hundred and eighty days) commencing from the date on which the Income-tax Officer forwards the draft order under Sub-section (1) of Section 144B to the assessee and ending with the date on which the Income-tax Officer receives the directions from the Inspecting Assistant Commissioner under Sub-section (4) of that Section, or, in a case where no objections to the draft order are received from the assessee, a period of thirty days. '
7. On a plain reading of the said Explanation 1, it is clear that the provisions thereof extend the limitation by the time which the Inspecting Assistant Commissioner may take in giving directions to the Income-tax Officer but such extension shall not exceed 180 days. Explanation 1 provides that in computing the period of limitation for the purpose of Section 153, the period as mentioned in Sub-section (4) of Section 144B shall be excluded. The ordinary time-limit for completing the assessment in this case is two years from the end of the assessment year, in which the income is first assessable, i.e., two years from March 31, 1982. The question is, which period is to be excluded. If we omit the expression 'not exceeding one hundred and eighty days', which is within the brackets, the period to be excluded is the period that commences from the date on which the Income-tax Officer forwards the draft order to the assessee and ends with the date on which the Income-tax Officer receives the directions from the Inspecting Assistant Commissioner. In this case, the draft assessment order has been forwarded to the assessee on September 6, 1983, and the directions have been received from the Inspecting Assistant Commissioner on September 24, 1984. Ordinarily, therefore, the period to be excluded is the period from September 6, 1983, to September 24, 1984, i.e., 384 days. However, the expression within the brackets, referred to above, provides that the period of exclusion in terms of Explanation l(iv) cannot exceed one hundred and eighty days. In other words, where the period taken from the date on which the Income-tax Officer forwards the draft order to the party to the date he receives the directions from the Inspecting Assistant Commissioner is less than one hundred and eighty days, the period to be excluded would be that period otherwise it will be one hundred and eighty days. In any event, the period to be excluded has to be added to the period of two years so that this will extend the period of limitation beyond the last date on which the assessment could have been completed under Section 143 or 153. If that is done, the assessment could have been completed in this case on or before September 27, 1984, and, therefore, the assessment made as on September 25, 1984, is very much in time.
8. The assessee's contentions, therefore, have no merit. We accordingly answer the question for the assessment year 1981-82 in the negative and against the assessee.
9. The second question referred at the instance of the Revenue relating to the assessment year 1982-83 is as under :
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the interest on fixed deposit amounting to Rs. 2,69,338 did not accrue during the year under appeal and the inclusion thereof was not proper ?'
10. Shortly stated, the facts relating to the question are as under :
This court, vide order dated August 25, 1980, directed the voluntary liquidator to keep a sum of Rs. 25 lakhs so transferred to them deposited in a separate fixed deposit account and not to deal with the said fixed deposit account or with the interest that will accrue thereon without obtaining the prior leave of the court on notice to the respondents or to such other parties as the court may direct. The Assessing Officer found that the fixed deposit had been deposited and interest accrued on the said amount at Rs. 2,69,338. The Assessing Officer was of the opinion that this amount accrued to the assessee and so he included the same in the total income of the assessee. The order of the Assessing Officer on this issue has been confirmed by the Commissioner of Income-tax (Appeals).
11. On appeal to the Tribunal, the Tribunal found that the fixed deposit has been lying with the High Court. The direction of the court was that the liquidators shall not deal with the fixed deposit and the interest unless they take the prior permission of the court on notice to the respondents or to such other parties as the court may direct. Thus, it is clear from the direction of the court that the assessee has not got any enforceable right against the interest or the principal amount. The word 'accrual' denotes accrual of income for which an enforceable right is created in favour of the person in whose favour the income accrues. The interest accruing is under the control of the High Court and unless an order is passed by the High Court releasing the amount, it cannot be available to the assessee. Therefore, after considering the decisions cited by the parties, the facts and circumstances of the case and particularly the order of the High Court, the Tribunal held that the amount did not accrue during the year under appeal and, subsequently, the inclusion thereof was not proper.
12. Learned counsel appearing for the assessee filed before us a copy of the order of this court. On perusal, we find that the Tribunal's finding that the said order did not create any right which the assessee could enforce is correct. The assessee had no enforceable right to receive either the principal or the interest on the amount lying in the fixed deposit. The right to receive any part or whole of such amount is totally unsettled. Therefore, the Tribunal was correct in holding that the amount of interest on the principal sum did not accrue during the relevant previous year. Reliance has been placed on the decision of this court in CIT v. Hindusthan Housing and Land Development Trust Ltd. : 108ITR380(Cal) affirmed by the Supreme Court in its decision in CIT v. Hindustan Housing and Land Development Trust Ltd. : 161ITR524(SC) .
13. In the premises, we answer the question relating to the assessment year 1982-83 in the affirmative and against the Revenue.
14. There will be no order as to costs.
Shyamal Kumar Sen, J.