Income Tax Appellate Tribunal - Mumbai
Shri Dilip S. Dahanukar vs Asst. Com. Of Income-Tax on 27 May, 2003
Equivalent citations: [2004]90ITD525(MUM)
ORDER
K.K. Boliya, A.M.
1. This appeal has been filed by the assessee against the order dated 22.03.2002 of CIT (A)-XII, Mumbai.
2. The first ground of appeal pertains to confirmation by the learned CIT (A) of validity of notice issued u/s 148 of the Income Tax Act, 1961. This ground of appeal was not seriously contested on behalf of the assessee. We find that the assessee had filed a writ petition in the Honorable Bombay High Court challenging the issue of notice u/s 148 and the H.C. eventually upheld the validity of the proceedings intiated u/s 147 of the Income Tax Act, 1961 and issue of notice u/s 148. In view of the above facts, the finding of the learned CIT (A) on this issue is confirmed.
3. Ground No. 2 is as under : -
"The C.I.T. (A) erred in holding that the assessment order dated 31.07.2000 passed in consequent of notice dated 18.03.1998 issued under section 148 was not barred by limitation."
4. The assessee is an individual and is proprietor of two concerns viz. M/s. Bio Basic Industrial Undertaking (Daman) and M/s. Basix (India). The original return of income for the assessment year 1994-95 was filed on 27.10.1994 declaring total income of Rs. 6,74,750/-. The return of income was processed u/s 143(1)(a) on 20.12.1994. Thereafter the assessment u/s 143 was made on a total income of Rs. 21,64,320/-. As a result of survey conducted u/s 133A of the Income Tax Act, 1961 on 23.10.1997, it transpired that income chargeable to the escaped assessment mainly on account of wrong deduction of Rs. 23.85 crores u/s 80IA of the Income Tax Act, 1961. Therefore, after recording reasons the assessing officer issued a notice u/s 148, which was served on the assessee on 25.03.1998. In response to this notice, return of income was filed on 28.10.1998 declaring income of Rs. 18.67,667/-. Subsequent to the filing of return of income, the assessee filed a writ petition No. 3016/99 before the Honorable Bombay High Court on 17.12.1999 challenging the issue of notice u/s 148. The writ petition was admitted on 18.01.2000 and interim stay was granted by the High Court. On 22.02.2000, the High Court dismissed the writ petition but granted the further stay for a period of four weeks to enable the assessee the writ petition but granted the further stay for a period of four weeks to enable the assessee to approach the Supreme Court. On 24.02.2000, the department applied for the certified copy of the High Court's order. The assessee filed SLP in the Supreme Court on 18.03.2000 and the period of four weeks stay granted by the High Court expired on 22.03.2000. On 29.03.2000, M/s S.P. Mehta, assessee's counsels filed a letter before the assessing officer requesting him not to take up re-assessment proceedings, pending admission of assessee's SLP. The SLP was dismissed 17.04.2000. The copy of the High Court's order dismissing the assessee's writ petition was ready for delivery on 19.05.2000 and was collected by the Law Ministry on 24.05.2000 and the assessing officer received the copy of the judgment on 26.05.2000. We have mentioned above the chronology of some important events, as the same is essential for deciding the ground of appeal raised by the assessee. As mentioned above, on 18.01.2000, the High Court granted interim stay and further stay of four weeks on 22.02.2000. Thus the stay was operative from 18.01.2000 to 22.03.2000 i.e. for a period of 65 days. In normal course, the assessment was getting time barred on 31.03.2000, as the notice u/s 148 was served 25.03.1998 and as per section 153(2), the re-assessment was to be completed within a period of two years from the end of financial year in which notice u/s 148 was served. However, by virtue of clause (ii) of explanation 1 u/s 153, the period during which the assessment proceeding is stayed by and order of any court, is to be excluded in computing the period of limitation. Accordingly, if the period of 65 days is excluded, the time limit for making re-assessment expired on 04.06.2000. Admittedly, no assessment was made on or before 04.06.2000. To continue with the chronology of some relevant events, on 06.07.2000, the assessing officer sought the opinion of Ministry of Law regarding the time limit for completing the re-assessment. The ministry of Law gave opinion on 19.07.2000, gist of which is as under : -
i) section 153(3)(ii) lifts bar of limitation and relies on 155 ITR 739 and 114 ITR 379.
ii) Limitation extended by virtue of decision on Grindlays Bank 2002-Taxindiaonline-85-SC-IT
iii) Limitation saved by section 12 of the Limitation Act and relies on AIR 1977 SC 523.
On 31.07.2000, the assessing officer completed the assessment.
5. During the course of re-assessment proceedings, the assessee never raised any objection to the effect that the time for completion of the assessment expired on 04.06.2000. This objection was taken for the first time before the CIT(A). The learned CIT(A) called upon the assessing officer to submit his report on the objection raised by the assessee. The assessing officer replied that the central government advocate, Ministry of Law vide the letter dated 19.07.2000 opined that in the present case the provisions of section 153(3) are applicable and therefore re-assessment can be completed at any time without any bar or limitation. The issue was argued before the learned CIT(A) on behalf of the assessee in detail and ultimately vide para 4.13, the learned CIT (A) dismissed the ground of appeal raised by the assessee, in this regard with the following observations : -
"I have considered the submissions made by the Learned Representative for the Appellant and also the observations of AO. Having carefully examined the facts, I am of the view that the AO was clearly justified in taking the benefit of the exception clause of Section 153(3). The Assessment/reassessment was in consequence of the finds given by the Honorable High Court who had not only dismissed the writ petition filed by the assessee but also gave a finding to this effect approving the decision of the AO for issuing the notice u/s 148. The AO is acting as a Court under the I.T. Act. Provisions of section 12 of the Indian Limitation Act are applicable for excluding the time consumed for obtaining the certified copy of the Court order from the period of limitation prescribed for assessment as per sec. 29 of the India Limitation Act. Under these circumstance, I hold that the assessment is not barred by limitation. Ground No. 1,2 and 3 are therefore decided against the appellant."
6. In the backdrop of the above-mentioned facts, the learned counsel Shri S.E. Dastur, appearing for the assessee, submitted that the entire controversy is confined to the following two issues. a) Whether the bar of limitation is governed in this case u/s 153(2) reads with clause (ii) of explanation i or u/s 153(3) as contended by the Revenue authorities. b) Whether u/s 12 of the Limitation Act, 1963 is applicable and consequently the time taken for obtaining the order of High Court is to be further excluded from the period of limitation. The learned counsel for the assessee invited out attention to the relevant provisions of section 153 of Income Tax Act, 1961, which are reproduced below :-
"153.(2) No order of assessment, reassessment or re-computation shall be made under section 147 after the expiry of one year from the end of financial year in which the notice under section 148 was served :
(3) The provisions of sub-section (1) and (2) shall not apply to the following classes of assessment, reassessments and re-computations which may, (subject to the provisions of sub-section (2A), be completed at any time -
(ii) where the assessment, reassessment or re-computation is made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 250, 254, 260, 263, or 261 [or in an order of any court in a proceeding otherwise than by way of appeal or reference under this act];
[Explanation I : - In computing the period of limitation for the purposes of this section-
(i) ----------
(ii) the period during which the assessment proceeding is stayed by an order or injunction of any or ]
7. Shri S.E. Dastur commenced his arguments by submitting that section 153(3) of the Income Tax Act, 1961 is applicable in a case where the assessment or re-assessment is made in consequence of or to give effect to any "finding or direction" contained in an order of any Court. It is pointed out that the Revenue authorities, on the basis of the opinion of Central Government Advocate, are of the view that the bar of limitation does not apply to this case. It is pointed out that this view of the Revenue authorities flows from the Law Ministry's opinion dated 19.07.2000. Since, this opinion is the very basis for the re-assessment made on 31.07.2000, it would be appropriate, at this stage, to reproduce the relevant portion of the opinion. Copy of which is compiled at pages 16-20 of assessee's paper book. The relevant portions are as under : -
"It is pertinent to observe that the High Court of Mumbai in present reference matter not only dismissed the writ petition filed by the assessee against the proposed action by the Deptt. for reassessment and notice under section 148 of Income Tax Act, but also has given finding to this effect approving the decision of assessing officer for issuing notice u/s 148. The relevant portion of judgement of the High Court is reproduced here below:
"however, on facts, we are satisfied that there is the material on record on the basis of which the A.O. Has reason to believe that income has escaped assessment. The above observations on merit are tentative in nature-----"
Mr. Dastur applies for stay of above order for 4 weeks, stay to operate till 22nd March, 2000. No further extension stay will e granted.
Keeping in view of the above said order of the High Court we are of the view the bar of limitation u/s 153 (1&2) of the section 153 (3) of the Income Tax Act would not be applicable because the reassessment proceeding in the present reference is in consequence of the above said decision of the High Court on a writ petition filed by the assessee himself. The assessing officer concerned in duty bound and is legally expected to proceed further in order to give effect to the above said funds of the Honorable High Court. This position has already been examined by the Honorable Karnataka High Court in the matter of T.M. Karshali v. 6 Income Tax Officer reported in (1985) ITR vol. 155 page 739, wherein the Lordship of Honorable Karnataka High Court was held, if there is order of court whatever be its status, whatever may be nature of order then the bar of limitation is automatically lifted. The nature of the court and the nature of the order of the court has no relevance. It is pertinent to mention here that in above said case the income tax officer had initiated proceeding u/s 147 of the IT Act in order to give effect to the find of a reference court in a land acquisition proceeding under the land acquisition Act. The Supreme Court of India has also examined this position in its decision Grindlays Bank Limited v. ITO, Calcutta and other (reported in 1980 ITR Vol. 122 page 55) and has held, where the High Curt had granted stay of assessment proceeding in a writ petition when there was limitation to pass assessment order and the High Court, thereafter passed the direction to assessment order on a specific date and not before the said assessment order passed in pursuant to the court direction not barred by limitation. The Supreme Court further observed as such "the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by mere circumstances, that it has initiated a proceeding in the court, may be neutralized. The simple fact of institution of litigation by itself should not be permitted to confer the advantage on the party responsible for it". Another decision of the Calcutta high Court (reported in (1978) 114 ITR 379) in the matter of Cachar Plywood Limited, which is also relevant and applicable in the present reference, wherein the Calcutta High Court has laid down that wherein the court is in session of the such proceeding the time limit of assessment was provided in sub section of (2) of section 153 shall have no application to the assessment which may be made at any time in consequence or to give effect to any finding or direction contained in order of the court in the said proceeding".
8. The learned counsel of the assessee pointed out that, alternatively, the Law Ministry expressed the opinion that by virtue of section 12(2) of the Limitation Act the period taken by department for obtaining the copy of the High Court's order has to be excluded from the limitation period even if section 153(2) is applied. In this connection reference has been made to the Supreme Court decision in the case of Commissioner of Sales Tax v. M/s Madanlal and Sons (AIR 1977 SC 523), where it was held that if there is no provision in the special or local law to exclude application of section 12(2) of limitation Act, the said provision would be applicable by virtue of section 29 of the Limitation Act.
9. Shri Dastur submitted before us that the Bombay High Court passed the order dismissing the assessee's writ petition on 22.2.2000 and the relief claimed in the writ petition was that the notice issued u/s 148 should be quashed. The High Court ordered that there was no reason to interfere with the impugned notice for re-opening of the assessment. Shri Dastur emphasized that the Honorable Bombay High Court neither recorded any finding nor issued any direction and therefore the re-assessment order passed on 31.07.2000 cannot be said to have been passed in consequence of or to give effect to any finding or direction contained in the High court's order dated 22.2.2000. The re-assessment order, as a matter of fact, has been passed pursuant to the notice u/s 148 issued on 18.3.1998, and not by reason of High Court's order dated 22.2.2000. It is pointed out by the learned counsel for the assessee that this becomes evident from the assessment order itself as nowhere in the assessment order has it been stated that the assessment order was to give effect to any finding or direction of High Court only upheld the validity of the notice u/s 148 which means that the assessing officer was free to take any further proceedings as deemed fit to implement the notice issued u/s 148. For this proposition that the High Court's order dismissing the writ petition cannot be said to contain any finding or direction, the learned counsel for the assessee relied upon the following cases:-
1. Pt. Hazarilal v. Income-tax Officer 39 ITR 265 (ALL)
2. Rajendernath v. CIT (A) 120 ITR 14 (SC)
3. ITO v. Muralidhar Bhawgan Das 52 ITR 335 (SC)
4. V.R. Indurkar v. Praveen Chandra Hema Chand 34 ITR 397 (BOM)
10. Referring to the case of Pt. Hazrilal (supra), the learned counsel for the assessee pointed out that in that case re-assessment proceeding were initiated against the assessee for the assessment year 1947-48 u/s 34 of Indian Income Tax Act, 1922. The learned counsel for the assessee invited our attention to the ratio of the decision of Honorable Allahabad High Court the relevant portion of which is reproduced below from the head note :-
"(ii) That the word 'finding' in law had a definite meaning and that was, as indicated by the provisions of the Code of Civil Procedure, that a finding was a decision of a court on material question in issue. There was no other wider meaning of the word 'finding' in common use, which could be applied to that word as used in the proviso to section 34(3). The word 'finding' did not include any state of fact contained in a decision irrespective of whether that fact was or was not material to the decision and whether the court or the tribunal, when recording the decision, had any occasion to hear the parties on that question of fact and to record a decision on it instead of merely reciting it as a statement of fat. it covered only material question which arose in the particular case for decision by the authority hearing the case or the appeal which, being necessary or passing the final order or giving the find decision in the appeal, had been the subject of controversy between the interested parties or on which the parties concerned had been given hearing.
(v) That the finding that the sum was not income for the assessment year 1947-48 could lead to the conclusion that it might be income for some other year, which could be the assessment year 1946-47. This remote connection between the notice issued u/s 34 and the finding recorded by the Appellate Assistant Commissioner did not by itself satisfy the requirement that the action taken must be 'in consequence of' the finding. In that finding, there was nothing to show that there had been any omission or failure on the part of the petitioner to disclose fully or truly all material facts necessary for his assessment for the year 1946-47, or to show that any income for that year had been under-assessed or had escaped assessment."
11. Out attention is also invited to the following observations of the Honorable Supreme Curt in the case of Rajendernath (supra) (extracted fro the head note):
"The expressions "finding" the "direction" in s. 153(3) are limited in meaning. A finding given in an appeal, revision or reference arising out of an assessment must be a finding necessary for the disposal of the particular case, that is to say, in respect of the particular assessee and in relation to the particular assessment year. To be a necessary finding, it must be directly involved in the disposal of the case. It is possible in certain cases that in order to render a finding in respect of A, a finding in respect of A, a finding in respect of B may be called for. For instance, where the facts show that the income can belong either to A or B and in no one else, a finding that it belongs to b or does not belong to B would be determinative of the issue whether it can be taxed as A 's income. A finding respecting A. If, however, the finding as to A's liability can be directly arrived at without necessitating a finding in respect of B, then a finding made in respect of B is an incidental finding only. it is not a finding necessary for the disposal of the case pertaining to A. As regards the expression "direction" in section 153 (3) (ii) of the Act, it is now well settled that it must be an express direction necessary for the disposal of the case before the authority or court. It must also be a direction which the authority or court is empowered to give while deciding the case before it. The expressions "finding" and "direction" in s. 153 (3) (ii) must be accordingly confined. Section 153 (3) (ii) is not a provision enlarging the jurisdiction of the authority or court."
12. Leading us through the case of Muralidhar Bhagawandas (supra), the learned counsel fro the assessee invited our attention to the relevant observations of the Court which are reproduced below from the head not:-
"(v) That the expressions "finding and "direction", in the second proviso to section 34(3), meant respectively, a finding necessary for giving relief in respect of the assessment for the year in question and a direction which the appellant or revisional authority, as the case may be, was empowered to give under the sections mentioned in that proviso. A "finding", therefore, could only be that which was necessary for the disposal of an appeal in respect of an assessment of a particular year. The Appellate assistant Commissioner might hold, on the evidence, that the income shown by the assessee was not the income for the relevant year and there by exclude that income from the assessment of the year under appeal. The finding in that context was that the income did not belong to the relevant year. He might incidentally find that the income belonged to another year, but that was not a finding necessary for the disposal of an appeal in respect of the year of assessment in question."
13. Coming to the Honorable Bombay High Court decision in the case V.R. Indurkar (supra), the learned counsel of the assessee has referred to head not which is reproduced below :-
"The Income tax officer initiated reassessment proceedings under section 34 against the assessee in respect of the assessment year 1945-46 and by an order dated February 9, 1955, brought to tax two sums of Rs. 50,000/- and Rs. 3,500/- as income from undisclosed sources. On appeal, the appellate Commissioner held that the two amounts did not from part of the income of the assessee or the assessment year 1944-45 for which the Income-tax officer may take necessary steps, if so advised". thereupon, on May 14, 1956, the Income-tax officer issued another notice under section 34 seeking to include the two amounts as income for the assessment year 1944-45. This notice was issued beyond eight years from the relevant assessment year and the question was whether the proviso to section 34 (3) of the Income tax Act applied:
Held, that the Appellate Assistant Commissioner only decided that the amounts did not form part of the income for the assessment year 1945-46 and he did not find that they were income fro the earlier year and he could not have found to that effect; the suggestion that they cold assessed, if at all, for the year 1944-45 was neither a finding nor a decision; the notice could not be said to have been in consequence of or to give effect to any finding or direction given by the Appellant Assistant Commissioner and was therefore barred by limitation."
14. Reverting bank to his contention hat when a writ petition challenging the validity of notice issued u/s 148 is quashed by he Court, Sri Dastur submitted that in such a situation provisions of section 153(2) would be applicable and only the period during which the stay was operative will be excluded from the period of limitation. In such a case, section 153(3) has no applicability, as there is no finding or direction by a Court. The learned counsel for the assessee has also relied on the Honorable Bombay High Court decision in the case of Grasim Industries Ltd. dated 17.4.2000 in writ petition No. 665/99, copy of which has been made available. The relevant portion of the judgment contained in para 14 is reproduced below:-
"Before concluding, it may be mentioned that, in the present matter, notice under section 148 was given on 28/6/1996. Under section 153(3), the department was required to pass an order of assessment on or before 31/3/1999. The writ petition was filed on 8/3/1999. The assessment proceedings were stayed by the order of the Division Bench of this Court on 10/3/1999. Therefore, the proviso to explanation (1) to section 153 of the Income Tax Act would apply. Under the said proviso, in cases where allegedly, after exclusion of the period as per clause (ii) to explanation (1), the period of limitation referred to in section 153(2) available to the A.O. for making an order of reassessment is less than 60 days then, in such a situation. The remaining period shall be extended to 60 days and the period of limitation under section 153 (2) shall be deemed to be extended accordingly. In this case, on facts, about 21 days were left to complete the reassessment when this court granted stay in the writ petition on 10/3/1999. Therefore, the proviso to explanation (1) to section 153 is attracted. Hence, the remaining period for making an order of reassessment is hereby extended to 60 days."
15. Shri Dastur has also relied upon Honorable Bombay High court decision dated 14.01.1981 in the case of Madhavnagar Cotton Mills ltd. in appeal No. 191/75, miscellaneous petition No. 698/69, copy of which has been placed on record. In this case a notice was served on the petitioner on 25.9.1963 u/s 148 of the Income Tax Act, 1961 in respect of escaped income for the assessment year 1946-47 and 1947-48. The assessment proceedings were stayed on 17.01.1967 and the Court also recorded an undertaking from the petitioner's counsel Sri Mehta to the effect that Sri Mehta will not raise any question of limitation so far as the completion of assessment is concerned. Ultimately, the relevant petition No. 137 of 1963 was dismissed on 31.08.1967 and the appeal was also ultimately dismissed by the Honorable Supreme Court on 24.03.1969. However, earlier on 28.03.1968, he Honorable Supreme Court granted stay. Eventually, the assessing officer revived the proceedings by issue of notice u/s 143(2) on 16.08.1969. The matter was heard by the learned single judge who held that the undertaking given on 17.01.1967 was absolute in nature and therefore the petitioner were prevented from raising any question of limitation. The Honorable Division Bench in their judgment under reference did not agree to the view taken by the learned single judge and the relevant observations from page 10 of the judgment may be reproduced below:-
"The period spend in the disposal of the appeal before the supreme Court is liable to be excluded not because of this undertaking but because of explanation 1 to section 153 of the Act. This undertaking, however, cannot protect department for the period from 24.03.1969 when the supreme Court dismissed the appeal, till notice reviving proceeding was issued by the Income Tax Officer on 19.08.1969. We are informed at the Bar that only 29 days were available to the department on 24th March 1969 when appeal was disposed of by the Supreme Court. The "undertaking" cannot give any advantage to the department after expiry of 29 days. If representative of the department in the Supreme Court did not care to intimate the decision of the Supreme Court to the department, the said circumstance cannot save limitation after 29 days subsequent to 24th march 1969. It was obviously the duty of the department itself to make necessary arrangement to get itself informed of what ultimately happened in the Supreme Court. If they chose not to move in the matter 4r, fault is theirs. The case apparently is one of gross negligence on the part of the officer concerned. Suffice it to not that the Respondents cannot rely on this undertaking of the petitioner given through their counsel in this court on 17th January, 1969 for this purpose. We are unable to agree with the Single Judge that undertaking is of absolute nature the petition, in our opinion, deserves to be allowed."
16. Shri Dastur continued his arguments by distinguishing the cases on the basis of which legal opinion was given by the central government advocate. It is submitted that the cases do not support the Revenue. The learned counsel for the assessee invited our attention to the ratio of the Honorable Supreme Court in the case of Grindlays Bank Ltd. (supra), which is reproduced below from the head note : -
"During the assessment proceedings for the assessment year 1972-73, a notice under s. 142(I) of the Income Tax Act, 1961, was issued to the appellant for production of certain accounts and documents. challenging that notice the appellant filed a writ petition on March 17, 1975. A single judge of the High Court passed an interim order of injunction restraining the ITO from proceeding with the assessment and on March 25,1975, made the order operative for the pendency of the petition. On August 31, 1976, the single judge disposed of the petition by his judgment including therein a direction to the assessee to comply with the notice and a direction to the ITO to complete the assessment by March 31, 1977. Subsequently the single judge amended his judgment requiring the assessment to be completed on March 31, 1977, and also directed the ITO to make a fresh assessment. The appellant appealed to the Supreme Court and contended that the High Court ought not to have made the direction for a fresh assessment because the assessment had already become barred by limitation and thereby a valuable right no to be assessed had accrued to the appellant and the High Court was not competent to deprive the appellant of the accrued rights :
Held, rejecting the contention of appellant, (i) on the facts, that the assessment proceeding remained stayed during the entire period from March 17, 1975 to March 31, 1977, by successive order of the court and in view of clause (ii) of explanation 1 to section 153 of the Income Tax Act, 1961, the assessment order dated March 31, 1977, was not barred by limitation.
17. The learned counsel for the assessee pointed out that in the above case the initial assessment was framed within the prescribed time limit and therefore the facts of the present case are different. Referring to the Honorable Karnataka High Court decision in the case of T.M. Kausali v. Sixth ITO (155 ITR 739), which is relied upon in the legal opinion of the central govt. advocate, the learned counsel for the assessee pointed out that in that case the assessee's lands were acquired by the government and compensation was awarded to it in 1965. On an appeal, the High Court enhanced the compensation and the assessee received such enhanced compensation and interest on it in January 1975. On account of this finding of the High Court, ITO started proceedings u/s 147 of Income Tax Act, 1961. In this context, it was held that the proceedings were not barred by limitation in view of section 153(3)(ii) of the Income Tax Act, 1961. The relevant portion of the ratio is reproduced below from the head note: -
"The language of s. 150 s.153(3)(ii) are not similar and they govern entirely different situations. Section 150 is intended to give effect to the orders made by superior authorities and superior courts without any period of limitation. Section 153(3)(ii) has not been enacted fro that purpose and the construction placed on s.150 will not apply to s.153(3)(ii). The first part of s.153(3)(ii), deals with a finding or direction contained in an order made u/s 250, 254, 260, 262, 263 and 264 of the Act. When there is an order made under any o these sections, then and then only the first part of cl.(ii) of sub.s.(3) of the s.153 operates. In the second part of s.153(3)(ii), the words used are "an order of any court in a proceeding otherwise than by way of appeal or reference under this act". "An order of any court" means as order of any and every court in the court. The hierarchy and status of the court in the country is not decisive. All that this provision provides is that it must be a court and there must be an order of a court. The nature of the court and nature of the order made by the court have no relevance. If there is an order of a court, whatever be its status, then the bar of limitation is automatically lifted."
18. The learned counsel for the assessee also lead us through the Honorable Calcutta High Court decision in the case of Cachar Plywood ltd v. ITO (114 ITR 379), which is referred to in the Law Ministry's legal opinion. In this case, the Central Board of Direct Taxes (CBDT) by an order dated 23.12.1972 transferred the case of the petitioner from ITO, Karimgunj to ITO, Central circle, Calcutta. The petitioner challenged the CBDT's order, which was ultimately quashed. In the mean time, ITO Central Circular, Calcutta had completed Assessment of the petitioner of the assessment year 1970-71, 72-73, 73-74 and 74-75. The department submitted before the Court that appropriate directions u/s 153 (3) of the Income Tax Act, 1961 should be passed, as it would not longer be possible for original ITO to make assessment for the aforesaid years, which would be barred by limitation u/s 153 (I). In the context of the aforesaid facts, the Honorable Calcutta High Court held as under (extracted from the head note):-
"Held, on the question of injunction, that even though there was no fetter on the Income-tax Officer, "A" ward, Karimgunj, to proceed with the assessments for the relevant years, so long as the impugned order of the CBDT dated December 23, 1972, transferring the case of the petitioner from the file of the said officer to the Income-tax Officer, Central Circle, Calcutta was in existence as it did exist till it was quashed, the Income-tax Officer of Karimganj had no jurisdiction to proceed with he assessment. His inaction, which was inevitable, cannot, here, be a ground for refusal to exercise a jurisdiction by this court if it was otherwise called for in the circumstances of the case and court had been conferred such jurisdiction which it should exercise in national and court had been conferred such jurisdiction which it should exercise in national interest as otherwise taxes payable for these years would be irrecoverable for no fault of the revenue:
Held further, that section (3) of the section 153 was not a mere proviso to its earlier sub-sections. The sub-section conferred plenary powers on the appropriate authority to pass appropriate directions in regard to assessment, reassessment or re-computation which could be made an completed at any time in consequency of any finding of court or to give effect to its direction as might be made. In such cases, the provisions of sub-sections (1) and (3) were not applicable at all so that sub-section (3) which by its own force excluded operation of the earlier sub-sections cannot be said to be a mere proviso to them. Even a proviso may in appropriate cases by considered as substantive provision dealing independently with matters specified therein and not as qualifying the main or proceeding provision.
19. Shri Dastur pointed out that the re-assessment in the above-mentioned case was permitted in special circumstances and under specific direction of the Court u/s 135 (3) of the Income Tax Act, 1961. It is therefore, forcefully submitted that in the present case, there is no finding or direction and therefore section 153(3) is not applicable.
20. Shri Dastur then addressed his arguments regarding the alternative suggestion made by the Central govt. Advocate that even if section 153(2) reads with explanation 1(ii) is applied, by virtue of section 12(2) of Limitation Act, 1963, time taken for obtaining the copy of the High Court's order will be excluded from the limitation period. It is submitted that the Limitation Act, 1963 has no application to the Income Tax Act, 1961, which is a self-contained Code. Under the Income Tax Act, 1961, separate and specific provisions of limitation have been prescribed under the various relevant sections. The detailed description of such provisions contained in the Income Tax Act, 1961 is given at page 127 of the assessee's paper book. The learned counsel for the assessee submitted that there are specific provisions in the Income Tax Act, 1961 permitting exclusion of time taken for obtaining a copy of relevant order u/s 268. The learned counsel for the assessee argued that the Limitation Act, 1963 is applicable only to Courts and not to Tribunals. A reference is made to the Honorable Supreme Court decision in the case of A.S.K. Krishnappa Chettiyar (AIR 1964 SC 227) (copy complied at page 47 of the paper book). The learned counsel for the assessee invited out attention to the following observations of the Honorable Supreme Court a page 227 of the AIR.
"The Limitation Act is consolidating and amending statue relating to the limitation of suits, appeals and certain types of applications to courts and must, therefore, be regarded as an exhaustive code. It is a piece of adjective or procedural law and not of substantive law. Rules of procedure, whatever they may be, are to be applied only to matter to which they are made applicable by the legislature expressly or by necessary implication. They cannot be extended by analogy or reference to proceedings to which they do not expressly apply or could be said to apply be necessary implication. It would, therefore, not be correct to apply any of the provisions of the Limitation Act to matters, which do not strictly fall within the purview of those provisions. The provisions of Ss. 3 to 28 of the Limitation Act cannot be applied to situations, which fall outside their purview. These provisions do not adumbrate any general principles of substantive law nor do they confer any substantive rights on litigants and, therefore, cannot be permitted to have greater application than what is explicit or implicit in them.
21. The learned counsel for the assessee has referred to Honorable Supreme Court decision in the case of Sakuru v. Tanaji (AIR1985 SC 1279). The learned counsel for the assessee has relied upon the following observations at page 1279 of AIR.:-
"The provisions of the Limitation Act, 1963 apply only to proceedings in "courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Court under the Codes of Civil or Criminal Procedure. But even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of S.5 of the Limitation Act shall be applicable to such proceedings."
22. Referring to the Honorable Madhya Pradesh High Court decision in the case of CIT v. Gupta and Sons Pvt. Ltd. (146 ITR 506), the learned counsel for the assessee invited our attention to the ratio of the judgment, which is reproduced below from the head note : -
"An enactment being the 'will of the Legislature, the paramount rule of interpretation is that a statute should be interpreted according to the intent of the persons who made it. If the Legislature willfully omits to incorporate something of an analogues law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something that it thinks to be a general principle of justice and equity. The scheme of the Income Tax Act, 1961, makes it clear that whenever the Legislature intended to apply the provisions contained in s.5 of the Limitation Act, relating to condonation of delay, to application or appeals under the I.T. Act, 1961, a specific provision was made in that case. This is evident from a perusal of the provisions of s.184(4) s.249(3). S.253(5) and s256(1) of Income Tax Act. Therefore, the provisions power to condone delay under the Act if sufficient cause is shown the conclusion is irresistible that the Legislature intended the Income Tax Act, 1961, to be a complete code by itself. Therefore, the scheme of the I.T. Act excludes the operation of s.5 of the Limitation Act, 1963. Section 146 does not empower the ITO to condone the delay in making an application for the cancellation of a best judgment assessment under s. 146 and any delay in making such application cannot be condoned.
23. The learned counsel for the assessee also contended that while interpreting the provisions of limitation, equitable considerations are not relevant. The Court is bound to place strict construction on the period of limitation stipulated in statute. For this proposition, Sri Dastur relied upon the Honorable Karnataka High Court decision in the case of M.K. Srikanta Shetty u/s CIT (A) (160 ITR 517), and Honorable Supreme Court decision in the case of DIT (investigation) v. Pooranmal and Sons (96 ITR 390). To emphasise the point further, the learned counsel for the assessee submitted that it is mandatory for Courts to consider limitation even if the parties do not raise the issue. For this preposition reliance is placed on the case Chaturbhuj Sahay v. Md. Habib (AIR 1920 Patna 280). The learned counsel for the assessee, further, submitted that the period proscribed under the Income Tax Act, 1961 for assessment or re-assessment is not merely a period of limitation but it imposes a fetter upon the powers of the assessing officer to bring to tax escaped income. For this proposition, reference is made to the Honorable Supreme Court decision in the case of S.S. Gadgil v. Lal and Co. (53 ITR 231).
24. Reverting back to the question of applicability of section 12(2) of the Limitation Income Tax Act, 1961, Shri Dastur pointed out that the aforesaid provisions are applicable to an appeal or an application for leave to appeal or for revision or for review of a judgment. Apparently, the section does not apply to an assessment. Similar is the legal position with regard to applicability of section 29 of the Limitation Act.
25. Joining the issue, the learned CIT/DR Shri P.S. Sethi forcefully supported the order of the Revenue authorities. It is argued that the relevant order of the Honorable Bombay High Court quashing the writ petition of the assessee contained specific finding and directions and therefore section 153(3) is clearly applicable. He invited our attention to the prayers made by the asessee in the writ petition challenging the notice u/s 148. The learned CIT/DR has especially referred to the prayer at para 52 (a) of the petition, which is reproduced below: -
"That this Honorable Court be pleased to issue under article 226 of the Constitution of India an appropriate direction, order or wit including a writ in the nature of certiorary calling for the records of the case and after satisfying itself as to the legality thereof, quash and set aside the notice dated 18.3.1998 (Ex. F) issued by the respondent No. 1 u/s 146 of the said Act seeking to reopen the assessments for the assessment year 1994-95."
26. It is submitted that a prayer was made to the Court for issue of appropriate directions. The learned CIT/DR contended that direction is implicit in the Court's order dismissing the writ petition and it amounts to directing the assessing Officer to re-start the assessment proceedings and complete the re-assessment. Referring to the relevant order of the Honorable Bombay High Court, the learned CIT/Dr also submitted that in this order certain findings have been recorded. He has invited our attention to page 7 of the order, where the Honorable Bombay High court has made the following observations :-
"However, on facts we are satisfied that there is material on record on the basis of which the AO had reason to believe that income had escaped assessment. The above observations on merit are tentative in nature. It is made clear that this order not prevent the petitioner from placing reliance on the order of the Commissioner of assessment year 1995-96 in the reassessment proceedings."
27. It is, therefore, contended that the re-assessment was made by the assessing officer in consequence of and to give effect to the finding or direction of the Court contained in the order referred to (supra). The learned CIT/DR also submitted that the cases cited on behalf of the assessee on this issue are distinguishable on facts. The DR has placed strong reliance on the judgments referred to in the opinion of the Central Govt. Advocate, which have already been discussed by us (supra).
28. Regarding the applicability of the Limitation Act to income tax proceedings, Sri Sethi submitted that it has been held in various cases the ITO or assessing officer is a court and therefore provisions of the Limitation Act are applicable. For this proposition, the learned CIT/DR relied on Honorable Supreme Court decision in the cast of Lalji Hari Das v. State of Maharastra (52 ITR 423). The ratio of the judgment from the head note is reproduced below : -
"that section 37(4) of the Indian Income Tax Act, 1922 made the proceedings before an Income-tax Officer judicial proceedings under section 193 of the Indian Penal Code and these judicial proceedings must be treated as "proceedings in any court" for the purpose of section 195(I)(b) of the code of Criminal Procedure. The court can take cognizance of the offence of making false statements in proceedings before the Income-tax Officer u/s 37 only on complaint in writing made by the Income-tax Officer".
29. Reference is also made to the case of Hayathan v. Mangilal (AIR 1971 MP 140). In this case, it was held that the provisions of the Limitation Act are applicable to Motor Vehicles Act. The relevant portion from the head note is reproduced below:-
"section 2(i) of the Limitation Act 1963 only excludes an appeal or an application. The word "suit" as contemplated in the provisions of the Limitation Act has a wider meaning and includes any legal proceedings commenced by one person against another in order to enforce a civil right. Although the proceedings u/s 110-A are not technically termed as "suit" they are instituted by the presentation of an application, which is more or less like a plaint. The provisions of the Motor Vehicles Act and the rules framed hereunder for the trial of claim petition clearly show that proceedings u/s 110-A are in the nature of a suit under the Civil P.C. Therefore, an application u/s 110-A would attract the provisions of section 6 of the Limitation Act. Application u/s 110-A falls within the scope of the word "suit" used in section 6 of the Limitation Act."
30. The learned CIT/DR has also invited our attention to the discussion contained in the book Rustomji on Limitation by Sri S.P. Sengupta VIII edition, to buttress his argument that section 29 of the limitation act is applicable to a local or special law like Income Tax Law. The learned CIT/DR has invited our attention to the comments given by the learned authors at page 279 and page 605 of the book, which may be reproduced below : -
Page 279 :
"33. Applicability of the section to special and local laws: - Sub-sec.(2) of Sec. 29 makes sec. 12 applicable for the purpose of determining the period of limitation prescribed by special or local law, unless its applicability is excluded by such law. Sec 12 (2) has been applied in many cases."
Page 605 :
2. Change effected by Section 29 of the Act of 1963 over previous Act:-After repealing of the Indian Limitation Act, 1908 and its replacement by the present Limitation Act of 1963, a fundamental change was made in sec. 29(2). The present sec. 29(2) indicates that one the requisite conditions for its applicability to given proceedings under special or local law are attracted, the provisions contained in secs. 4 to 24 both inclusive would get attracted which obviously would bring in sec. 5 which also shall apply to such proceedings unless applicability of any of the aforesaid sections of the Limitation Act is expressly excluded by such special or local law. By this change it is not necessary to expressly state in a special law that the provisions contained in sec. 5 of the Limitation Act shall apply to the determination of the periods under it. By the general provisions contained in sec. 29(2), this provision is made applicable to the periods prescribed under the special laws. An express mention in the special law is necessary only for an exclusion."
31. The learned CIT/DR has also referred to the Honorable Supreme Court judgment in the case Jagannath Prasad v. State of Uttar Pradesh (XIV Sales tax cases 536), copy of which is complied at page 116 of the assessee's paper book. The learned CIT/DR invited our attention to the internal page 554 of the judgment where a reference is made to the Full Bench judgment of Honorable Bombay High court in the case of Pooramchand Maniklal (1914) ILR 38 (Bom) 642. In this case, an Income-tax Collector was held to be a revenue court within the meaning of section 195 of the Criminal Procedure Code. The learned CIT/DR forcefully submitted that ITO is a Court and therefore the Limitation Act is fully applicable. The further substantiate this argument, it is submitted that in several cases various High Courts have categorically held that section 5 and Section 14 of the Limitation Act are applicable to Income tax proceedings. In this connection, reliance is placed on the following cases :
1. CIT(A) v. Trilokinath 147 ITR 613 (MP)
2. Manoj Ahuja v. IAC of Income 150 ITR 696 (PNH)
3. Rameshwar Soni v. Union of India 234 ITR 67 (MP)
4. Premchand Bansal & sons v. ITO 237 ITR 65 (Delhi)
5. Nihalkaran v. CWT 168 ITR 508 (MP)
32. In the above-mentioned cases, the Courts have consistently held that provisions of section 5 of the Limitation Act are applicable to income tax as well as wealth tax proceedings and accordingly any appeal or any application may be admitted after the prescribed period of limitation if the appellant or the applicant satisfies that he had sufficient cause for not proffering the appeal or making the application within the prescribed period. The learned CIT/DR also referred to Honorable Allahabad High Court judgment in the case of V.P. Misha v. CIT, wherein it was held that in view of section 29(2) of Limitation Act, the provisions of section 12(3) thereto would apply to the computation of the limitation of the period of one year prescribed for an application for revision filed u/s 25 of the Wealth-tax Act. The learned DR pointed out that section 12(2) of the Limitation Act applies to an appeal or an application for leave to appeal or for revision or for review of a judgment. It is pointed out that the word 'appeal' has not been defined under the Limitation Act and therefore a liberal and wide meaning must be assigned to the world appeal so as to include 'assessment. The learned CIT/DR, therefore, submitted that the provisions of Limitation Act are fully applicable to Income tax proceedings and the time taken for obtaining an authentic copy of the High Court's order should be excluded from the limitation period. It is pointed out that copy of the High Court's order was received by assessing officer on 26.05.2000 and therefore the period starting from 18.01.2000 when interim stay was granted by the High Court to 26.5.2000, when copy of the order was obtained, has to be excluded from the limitation period under explanation 1(ii) u/s 153 of the Income Tax Act, 1961. It is pointed out that if this period of excluded, the assessment made by the assessing officer on 31.07.2000 is within the limitation period even as per section 153 (2) of the Income Tax Act, 1961. The learned CIT/DR, however, reiterated that recourse to section 12(2) of Limitation Act is taken by the revenue only as an alternative plea and that the main argument is that the bar of limitation is not applicable as the case is covered u/s 153(3) of the Income Tax Act, 1961. In this connection, the learned CIT/DR has also referred to the Honorable Andhra Pradesh High Court in the case of Bar Abdul Rahman Saheb v. ITO (100 ITR 541 AP). Sri P.S. Sethi also submitted that various case laws cited on behalf of the assessee are distinguishable on facts. The learned CIT/DR also relied upon the Honorable Supreme Court decision in the case R. Dalmia v. Dalmia v. CIT (236 ITR 480). In this case, it was held that additional period given by explanation (1)(iv) to section 153 is available when assessment or re-assessment is made u/s 147 read with section 144 B of the Income Tax Act, 1961. The learned CIT/Dr also submitted that the rules or procedures are designed to advance justice and the assessee should not be allowed to take undue advantage of the provisions pertaining to limitation. A reference is made to the Honorable Allahabad High Court decision in the case of U.P. Road Transport Corporation v. ITAT, wherein, it was held that rules or procedures are designed to advance justice and must be interpreted in such a manner as not to make them penal statutes for punishing the erring parties. Reliance is placed on the Honorable Supreme Court decision in the case of Auto and Metal Engineers and Ors. v. UOI (229 ITR 399 SC). The relevant observations of the Honorable Supreme Court are reproduced below :--
"Since the passing of the final order of assessment had been stayed by the Delhi High Court by its order dated November 23, 1971, in the writ petitions, it must be held that there was a stay of the assessment proceedings for the purpose of Explanation 1 to section 153. The High Court was right in holding that the period during which the said stay order passed by the Delhi High Court was in operation had to be excluded for the purpose of computing the period of limitation for making the order of assessment."
33. The learned CIT/Dr invited our attention to the letter dated 06.04.2000 of Central Govt. advocate addressed to assessing officer (copy of which is placed at page 11 of the assessee's paper book). In this letter, it was communicated that the assessee's writ petition No. 3016/99 was likely to come up for final hearing and therefore, the relevant files/records should be immediately sent. It is submitted that the High court had already dismissed the writ petition on 22.02.2000, but there was not authentic communication to the assessing officer and even as per the letter of the Central Govt. advocate, an impression was given that the petition was pending. Referring to page 12 of assessee's paper book, the learned CIT/DR admitted that in this letter dated M/s. S.P. Mehta informed the assessing officer that the writ petition was rejected on 22.02.2000 and further the High Court has granted stay for four weeks to enable filing of SLP. The learned CIT/Dr pointed that in this letter a request was also made not to take any further action in this matter pending filing of SLP in the Supreme Court. It is submitted that on account of this communication, the assessing officer was informed about the dismissal of the writ petition and simultaneously the assessing officer was also requested not to proceed further in the matter pending filing of SLP. The learned CIT/Dr also submitted that during the entire re-assessment proceedings, the assessee never raised any objection or any plea regarding limitation period and therefore by his own conduct, the assessee is stopped from raising such plea subsequently. The learned CIT/DR summed up his arguments by reiterating that the re-assessment order has been passed within the limitation period and is therefore a valid order.
34. In his rejoinder, Shri Dastur, the learned Counsel for the assessee submitted that there is no concept of implied direction in the order of the High Court and that before the provisions of section 153(3) are involved, it must be shown that there are clear finding or directions in the order and the assessment order is to be framed to give effect to such directions. It is argued that when the writ petition of the assessee is dismissed, the assessing officer is free to implement the notice issued u/s 148. The learned counsel for the assessee has referred to Honorable Supreme Court decision in the case Hope Textiles v. UOI (205 ITR 508). The facts and ratio of this judgment are reproduced below from the head note:--
"A writ of mandamus cannot issue to compel a statutory authority to pass an order in violation of a statutory provisions.
For the assessment year 1971-72, the appellant company filed a return on the basis of which an order of assessment was made on March 27, 1974, accepting certain losses disclosed by it. On February 21, 1976, a reassessment notice was issued u/s 148 of Income Tax Act, 1961, pursuant to which the company filed a return disclosing further losses. No orders were passed till September 1981. The appellant company filed a writ petition in the High court for a mandamus to the Income-tax Officer to pass orders in pursuance of the notice. The High Court dismissed the writ petition holding that no mandamus could be issued compelling the Income-tax Officer to make an order of assessment beyond the period of limitation prescribed by section 153(2). The appellant company preferred an appeal to the Supreme Court. The Supreme Court dismissed the appeal, observing that sub-clause (ii) of section 153(3) could not be understood as empowering the High Court to give a direction to the authority under the Act to ignore the period of limitation prescribed under the Act."
35. We have given a very careful consideration to the submissions and arguments so ably and elaborately made before us by both the parties. We have also gone through the relevant facts of the case in the light of various judgments cited. The facts are clear and undisputed. The first issue, which we are required to adjudicate upon is, as to whether the provisions of section 153(3) would apply to the present case. There is no dispute that as per the clause (ii) of section 153(3), the primary requirement is that the assessment, re-assessment or re-computation is made on the assessee in consequence of or to give effect to any finding or direction contained in an order of a Court in a proceeding otherwise than by way of appeal or reference under the Income Tax Act. The Limitation provisions contained in the Income Tax Act, 1961 from the very basis for the jurisdiction vested in the assessing officer for completing assessment and therefore such provisions are required to be interpreted strictly. Before the provisions of section 153(3) are applied, it is to be established beyond any doubt that there is a finding or direction in the relevant order and the assessment or re-assessment is to be framed in consequence of or to give effect to such finding or direction. In the present case, notice u/s 148 was issued and assessee the writ petition challenging the issue of such notice. The High Court dismissed the writ petition with the result that the proceedings initiated u/s 147 of the Income Tax Act, 1961 by issue of notice u/s 148 were revived and the assessing officer there after was free to take action with regard to re-assessment u/s 147. After going through the plethora of judgments delivered by the Apex Court and various other High Court, relevant portions of which have already been extensively quoted supra, we have no hesitation in holding that the High Court's order dismissing the writ petition cannot be said to contain any finding or direction. As a matter of fact for deciding the writ petition, the Honorable Bombay High Court had no occasion to record any finding or to give any direction. The only issue was the validity of the proceedings initiated u/s 147. The Honorable Bombay High Court examined this issue and upheld the initiation of such proceedings with the result that the petition of the assessee was rejected. In other words, the hurdle created to continue the re-assessment proceedings was removed and therefore, the assessing officer was free to take any action with regard to the issue of notice u/s 148. As a matter of fact, even after dismissal of the writ petition, the assessing officer cannot be said to be legally bound to frame the re-assessment and he was also free to drop the proceedings. Therefore, in our view, there is hardly any basis to plead that the re-assessment was necessitated as a consequence of or to give effect to any finding or direction contained in the High Court's order. If the argument of the Revenue is accepted, it would mean that in any case where writ petition challenging the issue of notice u/s 148 is rejected, theoretically the re-assessment can be completed within unlimited period of time i.e. even after 50 years or 100 years. Such a proposition in our view, is simply un-acceptable being totally illogical. This is a clear case where, on admission of writ petition the High Court granted stay and therefore in our view provisions of section 153(2) read with Explanation 1(ii) thereof would be applicable. Accordingly, we hold that in the present case section 153(3) is not applicable.
36. Coming to the applicability of section 153(2) of the Income Tax Act, 1961, explanation 1(ii) requires that in computing the period of limitation, the period during which the assessment proceeding is stayed by an order or injunction of any Court, shall be excluded. Apparently, as per the above provision only such period is to be excluded during which the assessment proceeding is stayed. There is no provision under the I.T. Act, which permits exclusion of the period taken for obtaining a copy of the Court's order. That is how, the Limitation Act comes into picture, which is the second issue, which we are called upon to decide. In our view, the controversy as to whether the assessing officer is a court and whether the provision of the limitation are applicable or not to income tax proceedings, does not have any material implications for deciding the issue which has arisen in this appeal. After going through the large number of cases with which, we have been assisted by both the parties, the only conclusion is that for certain purposes, the assessing officer partakes the character of a court. Further, there is no doubt that the provisions of the Limitation Act cannot be excluded from application to Income Tax proceedings. It has been held in various cases that provisions of section 5, 12, 14 and 29 of the Limitation Act can be applied to the income tax proceedings if it is shown that such provisions have been specifically and clearly made applicable to the Income tax proceedings. The revenue has heavily relied on the provisions of section 12(2) of the Limitation Act, which is reproduced below:-
"12.(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.
37. In our view, the provisions are very clear, leaving no scope for any ambiguity or speculation. The provision is applicable for computing the period of limitation for appeal or an application for leave to appeal or for revision or for review of a judgment. In may be mentioned that sub-section (1) of section 12 of the Limitation Act also refers to the period of limitation for any suit, appeal or application. The learned CIT/DR has argued that the word 'appeal' includes assessment and therefore, the period taken for obtaining copy of the High Court's order should be excluded. We are afraid, such proposition cannot be accepted for the simple reason that it is violative of the basis and cardinal principles of interpretation. By no stretch of imagining can it be said that appeal includes assessment. The provisions of section 12(2) of the Limitation Act, as a matter of fact, facilitate filing of an appeal, suit or application and therefore, the period taken for obtaining copy of the relevant order has been directed to be excluded. This principle cannot be applied to completion of assessment by the assessing Officer. In non of the cases cited by the learned CIT/DR, it was held that the provisions of the Limitation Act would be applicable to the limitation prescribed for completion of assessment. Even if, for the sake of argument, it is assumed that the period taken for obtaining copy of the order is to be excluded, the chronology of events shows that the writ petition was dismissed on 22.02.2000 and simultaneously four weeks stay was granted by the High Court, the revenue was duly intimated of this important event as the central govt. advocates and even representatives of the Income Tax department were present when the judgment was announced by the High Court. The assessee's advocates M/s S.P. Mehta also intimated the A.O. about this fact. Thus, it cannot be said that he assessing officer was not aware of these crucial development. The period of four weeks granted by the High expired on 22.03.2000 even if the period of 65 days starting from 18.01.2000 and ending on 22.03.2000 is excluded from the period of limitation; the time limit for making the re-assessment expired on 04.06.2000. Thus on this assumption also the re-assessment becomes time barred. We do not find any merit in the argument of the learned CIT/DR that the assessee is estopped from the raising the plea of limitation. In our view, the issue of limitation goes to the very root and strikes at the very basis of assessing officer's jurisdiction to complete the assessment and therefore such a legal plea can be raised at any time. In fact, in some of the cases which have already been referred (supra), it has been held that even if no plea of limitation is taken, the courts are bound to consider it and even if a written undertaking is giving by the assessee stating that he will not raise the plea of limitation, merely on that basis, the limitation does not get extended. Therefore, in our view, there is no question that the assessee is estopped from raising this plea before the CIT (A) and then before the Tribunal.
38. Following from the discussion given above, we hold that the impugned re-assessment has been made by the assessing officer after the expiry of the limitation period which renders the assessment nul and void. Accordingly, we reverse the finding of the learned CIT(A) on this issue and the assessment order is quashed.
39. In view of our quashing the assessment order, the various other grounds of appeal are only of academic interest and are, therefore, not required to be dealt with.
40. In the result, the appeal is treated as allowed.