JUDGMENT
Amitava Lala, J.
1. This writ petition is made by the pen of one of the Directors of the petitioner company. From the record I do not find any affidavit of competency.
2. According to the petitioner, the moot point of moving this writ petition is that the notices issued under Section 143(2) and 142(1) of the Income Tax Act, 1961 both dated 12th February, 2002 in connection with the
proceedings for assessment year 1975-76 shall be cancelled, withdrawn and rescinded by the order or orders of this Court.
3. On 31st October, 1975 the petitioner company filed a return of Income for the assessment year 1975-76 showing the income of Rs. 47,480/-. On 11th October, 1977 the petitioner company filed a revised return showing a loss of Rs. 5,55,770/-. On 5th October, 1978 a draft order of assessment was sent by the Income Tax Officer under Section 144B, then existing, as the variation proposed to be made by the Income Tax Officer exceeded a sum of Rs. 1,00,000/-. On 18th October, 1978 the petitioner sent an objection under Section 144B(2) of the Act in respect of proposed draft order of assessment. On 19th January, 1979 appropriate Assistant Commissioner of Income Tax gave hearing of the objection. The hearing of assessment was completed under Section 143(3) read with Section 144B of the Act on 7th April, 1979. On 9th April, 1979 the petitioner challenged the order as well as the proceeding. One of the Judges of this High Court was pleased to issue Rule and grant interim order of the injunction restraining the respondents from proceeding with the assessment of the year .1975-76. On 19th April, 1979 such Court was pleased to modify the interim order passed earlier on 9th April, 1979 and the authority was given liberty to continue and complete the proceedings under Section 144B of the Act of the assessment year 1975-76 but the final order passed, if any, will not be communicated to or enforced against the petitioner till the disposal of the Rule.
4. The said writ petition came up for final hearing on 6th July, 2000 before me and following order was passed ;
“Following the ratio of the judgment passed a single Bench of this Court on 31st January, 19…. being C.R. No. 2640 (W) of 1981, the similar order passed by this Court as follows :
In this writ petition Section 144B of the Income Tax Act, 1961 (hereinafter referred to as the Act) was challenged. The draft assessment orders passed by the respondent No. 1 in terms of Section 144B of the Act were also impugned.
Section 144B was omitted by the Direct Tax Laws (Amendment) Act, 1989 with effect from 1.4.1989. As such the challenge to the section does not service. The draft assessment orders passed by the respondent No. 1 relating to the Assessment Year under Section 144B are also quashed. The respondent No. 1 will be at liberty to make an assessment in respect of the assessment year in question under the provisions of Section 143 of the Act.
The writ petition is disposed of accordingly.
There will be no order as to costs.
Let a photo copy of the unreported judgment dated 31.1.1991 filed in Court today be kept with the record of this case.”
5. It appears that the draft assessment order in relation to such assessment year passed under Section 144B was quashed in view of omission of the section itself by the Direct Tax Laws (Amendment) Act,
1989. However, liberty was granted to make respective assessment under provision of Section 143 of the Act.
6. According to the petitioner in the garb of such liberty, Income Tax Authority Issued notice under Section 143(2) read with Section 142(1) upon the petitioner. Interpretation of such liberty is the subject matter of consideration is the present writ petition. But it appears to this Court the petitioner is also asking relief or reliefs in connection with such notice and proceeding in addition to such Interpretation.
7. Under Section 142(1) of the Act, the Assessing Officer may serve on any person who has made a return under Section 139 etc, for the purpose of making an assessment under this Act, Section 139 is a process of giving return of income. Section 143(2) speaks for assessment where a return has been made under Section 139 or in response to a notice under Sub-section 1 of Section 142. However, Section 153 of the Act specified time limit for completion of assessment and re-assessment. Precisely, an emphasis was given in respect of Section 153(3)(ii) which is as follows :
“Where the assessment, re-assessment or re-computation is made on the assessee or any person in consequence of or to give affect to any finding or direction contained in an order under Sections 250, 254, 260, 262, 263 or 264 (or any order on any Court in a proceeding otherwise than by way of appeal or reference under this Act).”
8. Dr. Debi Prasad Pal, learned senior counsel appearing for the petitioner contended that time limit for assessment under Section 143 is specified under Section 153 of the Act and no assessment can be made beyond the period. Previously, there was a clause being Clause (c) under Section 153(1) of the Act immediately after Clause (a) and (b) whereunder two years period was fixed from the end of assessment year in which the income was first assessable or one year from the end of financial year in which a return or a revised return relating to the assessment year etc. was filed. Such Clause (c) provides that the expiry of one year from the date of filing of return or revised return under Sub-section (4) or (5) of Section 139 no assessment shall be made. Out of such sub-sections under Sub-section 5 if any person, having furnished a return under Sub-section (1) or any pursuance of a notice issued under Sub-section (1) of Section 142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. Therefore, in taking into totality of the explanation, the time limit as proved on the basis of the revised return was expired in 1978. Therefore, the same cannot be reopened now in the gurb of a liberty of the Court when law prohibits them to do so. He relied upon a judgment in 1961(41) ITR 191 (Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District I, Calcutta and Anr.) there the five Judges Bench of the Supreme Court held that Income Tax Officer will have reason to believe that there had been material non-disclose under assessment had taken place. The Income Tax Officer had no jurisdiction to issue the notices after the expiry of 4 years from the end of the assessment year and the company was, therefore, entitled to an
order directing the Income Tax Officer not to take any action on the basis of the notice. By showing this judgment Dr. Pal wanted to establish that since the time has expired no order can be passed by the authority concerned. According to him, a period of six days expired from the period of passing such order.
9. But from the proviso of the Section 142(1) of the Act I find as follows:
“Provided that where the return relates to the previous year relevant to the assessment year commending on the 1st day of April 1988 or any earlier assessment year, the reference to one year aforesaid shall be construed as a reference to two years from the end of the relevant assessment year.”
10. It also appears to this Court that there is much distinction in between the present case and the case before the Supreme Court. It was the case of re-assessment as per the notice of the Income Tax Authority. The present one is a process on the basis of revised return. Moreover, such judgment was delivered in the year 1960. But subsequent thereto by an amendment of Act with effect from 6th October, 1964 the Section 153(3)(ii) was amended by incorporating “or in an order of any Court in a proceeding otherwise than by way of appeal or reference under this Act”. It further appears to this Court that in such case it may be completed at any time and the provisions of the time limit in Sub-section (1) or (2) under Sub-section 153 in respect of assessments, re-assessments and re-computations shall not apply. Dr. Pal relied upon a further judgment reported in 1979(120) ITR 14 (Rajinder Nath v. Commissioner of Income Tax, Delhi) to show that an observation of the Court that Income Tax Officer was “free to take action” is not a direction of the Court. Therefore, even if leave is granted by this Court to make an assessment the same cannot be construed as and assessment as per the direction. The expression “free to take action” is an observation of the Court which may or may not be carried out by the authority. But it cannot be said that the authority is not free to take action irrespective of the results. Such observation of the Court is distinct and different from granting “liberty”. A liberty has a positive essence in granting something to be done by the authority in whose favour it is granted. If the liberty is in accordance with law, the same may set at rest. But if the liberty is in accordance with law, the law will take its own course on the basis of the leave granted by the Court. It appears that if I read the aforesaid quoted portion of Section 153(3)(ii) this liberty is not the order of the Court but definitely forms a part of the order. Therefore even if it may not have an element of mandate but the same cannot debar an authority in proceeding with the matter.
11. Thus, I hold and say that the authority concerned cannot debarred from issuing the notices on the basis of the liberty granted under an order of the Court.
12. That apart the petitioner invoked and challenged the very notices before this writ Court which normally cannot be entertained. They could have given reply taking the point of limitation, if any, which should have been the proper way to proceed with the same. Therefore, if today, the writ
Court interferes, it will be presumably correct that in one hand liberty was given to the authority in earlier order and on the other hand such liberty is withdrawn by the present order. Self contradictory order cannot be passed by the same Court. It should be the touch-stone of appreciation. Therefore, the writ petition stands dismissed. No order is passed as to costs. Prayer for stay is made, considered and refused.
Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment.
All parties are to act on a signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the officer of the Court in respect as above.