TaxTMI 
TaxTMI 
2003 (7) TMI 33
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....ttracted in view of the uncertain situation as to which of the interpretations would be correct. It is not in dispute that the facts are identical in both these cases. Having regard to the ratio decided and following the principle laid down in Vijay Mallya [2003] 263 ITR 41 (Cal)-APOT No. 735 of 2002, in this case, we hold that the impugned notice under section 154 does not conform to the ingredients of section 154 and, therefore, the same is illegal, invalid, bad in law and without jurisdiction. The other ground taken by Mr. Pal is related to two more notices issued by the authorities under section 142(1), one of which is dated November 30, 1995, at page 133 of the paper book. This notice is accompanied by the letter dated November 30, 1995, at page 134 of the paper book in respect of the assessment years 1992-93 and 1993-94. In the said letter, the authority had held that "you are treated as an ordinary resident and your claim of residential status as resident but not ordinarily resident is hereby rejected". When a notice is being given in the course of assessment for production of documents to prove the non-residential status, there is no scope of determining the question fin....
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....h law without being influenced by the observation made in the said letter dated January 8, 1996, at page 146. Mr. Pal, learned counsel for the appellant, contends that there cannot be any piecemeal assessment. He relied on CIT v. Dhampur Sugar Mills Ltd. [1988] 170 ITR 449 (All); M.M.A.K. Mohideen Thumby and Co. v. CIT [1955] 28 ITR 252 (AP) and Debi Prasad Malviya v. CIT [1952] 22 ITR 539 (All) in support of his contention. The decision in Dhampur Sugar Mills Ltd. [1988] 170 ITR 449 (All) does not help Mr. Pal in the present context. Inasmuch as in the said decision, it was held that the Act does not provide for multiplicity of assessment orders for a given year against the same assessee and assessment once made can be modified and interfered with only in accordance with law and in the manner provided under the Act. But it was so held in the context of the facts on which the said decision was rendered. In the said case, a reference was pending before the High Court in respect of an assessment. Pursuant to the direction given by the appellate authority against which the reference was pending before the High Court, a fresh assessment was made. This fresh assessment was held to be....
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....ng of information. The Assessing Officer had resorted to an enquiry, which he is entitled to do before the assessment. Therefore, it is not an assessment of a part of the income. In that way it is not an assessment piecemeal or a compartmentalized assessment. On the other hand, it is an enquiry before assessment. It is an enquiry as to on which basis the computation of income is to be made. It is the basic foundation for making the assessment. In order to examine this question in the light of the contention raised by Mr. Pal, we may examine the assessment process provided in the 1961 Act as applicable to the relevant assessment year. Chapter XIV of the 1961 Act deals with the procedure of assessment. Section 139 requires filing of return of income. After such return of income is filed, the same is to be dealt with in the Act provided in section 139 in its various sub-sections. We may not go into the details thereof. Section 142 empowers the Assessing Officer to make enquiry before assessment and to require the assessee to furnish information on such points or matters as the Assessing Officer may require. After such enquiry before assessment, assessment is made under section 143.....
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....CIT [1968] 69 ITR 738 (AP), it was held that the absence of opportunity provided under section 142(3) on the basis of the information furnished by an assessee vitiates the order. The same view was taken by the Gauhati High Court in Assam Forest Products (P.) Ltd. v. CIT [1977] 110 ITR 558 and the Rajasthan High Court in Vimal Chandra Golecha v. ITO [1982] 134 ITR 119 and the Kerala High Court in Malayil Bankers v. Asst. CIT [1999] 104 Taxman 161. Section 143(2) and (3) also envisage some enquiry or scrutiny. The word "assessment" takes colour from the context. It has to be understood in each section with reference to the context in which it has been used (A.N. Lakshman Shenoy v. ITO [1958] 34 ITR 275 at page 291 (SC)). The nomenclature does not prevent from being an assessment provision in a proper context, in the context of a penalty imposed as a part of the machinery of assessment of tax liability (C.A. Abraham v. ITO [1961] 41 ITR 425 (SC)). The correct connotation of the expression "assessment" in a given provision must be determined on an examination of the said provision and the fact that the expression has been elsewhere used in a wider connotation will not mean that it i....
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....de under section 143(3). Therefore, a decision, which is part of the assessment unless complete with the assessment under section 143(3) would not be appealable and if decided separately that will give rise to a cause of action, which the assessee may not be waiting to challenge till the assessment is made. When an order under section 143 is appealable, the part of the order that forms the basis of the assessment for computing the income is an integral part of the assessment in respect of which an assessee would be entitled to prefer an appeal. If this determination is part of the order under section 143 in a completed assessment order, then this decision is definitely appealable along with the order of computation of income for assessment. This determination cannot be segregated from the process of assessment and be determined separately in a compartmentalised process, leaving the assessee without any remedy, entitling him to seek relief through writ proceedings. Therefore, it is desirable that such determination should be included in the order of assessment and be made along with the assessment without making it separately and such determination should form part of the order of a....