TaxTMI 
TaxTMI 
1992 (7) TMI 22
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....e that the assessee is a Hindu undivided family. The assessment year is 1962-63, relating to the Dewali year ending on November 3, 1961. The assessee was served, within the statutory period of time available for completion of assessment for the year under reference, with a notice of demand dated April 11, 1967, for the said year. The assessee, however, did not receive a copy of the assessment order on the basis of which the notice of demand had been issued. It is not in dispute that the notice of demand was received "Within the statutory time. The detailed assessment order under section 143(3) of the Act relating to the assessment year under reference and typed on a form which was indicative of its having been printed on November 16, 1967, was claimed to have been received by the assessee on May 4, 1968, along with the orders for the subsequent assessment years. On these facts, the assessee had originally challenged the order relating to the assessment year under reference received on May 4, 1968, as barred by limitation, although this order had been shown as dated April 11, 1967. In the original appeal before the Appellate Assistant Commissioner, the assessee contended that the....
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....ly to make it null and void. In support of his submission, the learned representative for the Department relied on the decisions of the Supreme Court in the cases of Esthuri Aswathiah [1961] 41 ITR 539 and Bidhu Bhusan Sarkar [1967] 63 ITR 278. Learned counsel for the assessee, on the other hand, submitted that the manuscript (detailed) order was typed on the form printed on November 16, 1967. This was done seven months after the order sheet entry dated April 11, 1967. The copy of the typed order was given on May 4, 1968, along with the orders for the subsequent years. He, however, stated that the demand notice and challan for the assessment year under reference were received in April, 1967. Further, he submitted that the order sheet entry was not a speaking order and the detailed order, a copy of which was given to the assessee, was different from the order sheet entry dated April 11, 1967. In this connection, he further submitted that the Income-tax Officer was not empowered to amend the order without following the procedure prescribed in section 154 of the Act. He, therefore, urged that the latter order which was a detailed order was null and void as no notice for amendment o....
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....ed April 11, 1967, is a valid order, yet it does not meet fully the requirements of law. It is not such as can be struck down as invalid. We have to see that substantial justice is rendered to either party before us. We cannot go on mere technicalities. To be fair to both, we set aside this order of the Income-tax Officer and direct him to redo the assessment after affording reasonable opportunity of being heard to the assessee. In the result, the impugned order of the Appellate Assistant Commissioner is reversed and the order of the Income-tax Officer is set aside with the above direction." At the hearing, learned counsel for the Revenue reiterated the contentions as urged before the Tribunal, that the note in the order sheet (entry on April 11, 1967) showing that the income was assessed under section 143(3) on a total income of Rs. 79,846 is sufficient compliance with the requirement as regards the limitation for completion of assessment. The date, namely, April 11, 1967, being a date falling within the period of limitation, the assessment has to be taken as completed within the period of limitation. To support this contention, reliance was placed on Esthuri Aswathiah v. ITO [....
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.... the duty of the court to cure it. Reference is made in this connection to Guduthur Brothers v. ITO [1960] 40 ITR 298 (SC). In that case, the Income-tax Officer issued a notice asking the assessee to show cause why penalty should not be imposed. The persons proceeded against could not say that the Income-tax Officer was devoid of jurisdiction to initiate the proceedings and to issue such notice. But the mistake the Income-tax Officer had committed was that he levied the penalty before he had heard the party. The Appellate Assistant Commissioner set aside the order directing the Income-tax Officer to refund any sum that might have been recovered from the assessee meanwhile. But the officer did not give up the matter. He issued a fresh notice to enable the assessee to present his case and to have an opportunity of being heard. The assessee challenged the fresh notice issued by a writ petition contending therein that the Appellate Assistant Commissioner having set aside the order with a further direction to refund the penalty, the whole proceeding has reached finality and it is not open to the Income-tax Officer to renew it, The High Court and finally the Supreme Court decided that th....