Badri Prasad Bajoria vs Commissioner of Income Tax, Central

Masud, J.—In this reference u/s 66(1) of the Income tax Act. 1922, the short point to be decided is to determine whether the date of the assessment order is the date OB which it is passed or the date on which it k served on the assessee The facts of the case are briefly stated as follows:--

The assessee is a partner in three registered firms, namely M/s. Bajoria & Co., M/s. Nand Kishore & Co. (A/c No. 2) and M/s. National Shipping Co. He also derives income from dividends and also director''s fees and commissions from Star Paper Mills Ltd., and Hall & Anderson Ltd. The assessment year in question is 1954-55 and the corresponding previous year is the financial year 1953-54. The Income Tax Officer completed the assessment for the year 1964-55 on 26th March, 1959, on an income of Rs 42,318. Thereafter a notice of demand u/s 29 of the Income Tax Act demanding the tax due on the amount assessed was served on the assessee on 1st April. 1959. The assessee appealed to the Appellate Assistant Commissioner and also to the Appellate Tribunal but the said appeals were dismissed. On these facts the following question of law has been referred to us:

"Whether on the facts and in the circumstances of the case, the order of assessment for the year 1954-55 was made after the expiry of 4 years from the end of the relevant assessment year?"

The learned counsel for the assessee has challenged before us the validity of assessment u/s 23(3) on the ground that the order of assessment, not having been communicated to the assessee within 4 years after the end of the assessment year as provided u/s 34(3) is barred by limitation and, as such, invalid in law. Relying on Nripendra N. Majumdar Vs. N.M. Bardhan and Others, and Makhan Lal Sen v. Director of Panchayat Government of West Bengal (1964) 68 Cal WN 1109, Bachhittar Singh Vs. The State of Punjab, . he has contended that an order of assessment is not completed or made until it is communicated to the person to be affected by the order All the aforesaid cases do not relate to any section under the Income Tax Act. The cast. Nripendra N. Majumdar Vs. N.M. Bardhan and Others, was based upon Sections 77 and 87 of the Calcutta Municipal Act. 1951, and the impugned order was an order of dismissal by the administrative officer of the Corporation of Calcutta. Similarly the cases of (1964) 68 CWN 1109 (supra) and Bachhittar Singh Vs. The State of Punjab, , also arc concerned with the constitutional rights of a dismissed government servant. But one decision based on Section 33A(2) of the Income Tax Act. 1922, has been referred to us which, however, has some relevance In Petlad Bulakhidas Mills Co. Ltd. Vs. Raj Singh, , it was held that, where an Appellate Assistant Commissioner made an order on January 6 1956 and the order was served on the assessee on January 27 1956, the application for revision of that order u/s 33A(2) filed on January 25, 1957, was made within "one year from the date of the order" within the meaning of Section 33A and was not barred by limitation This case has only decided that a period of limitation will run only from the date when the order is served on the person who is affected by the order This must be so An assessee''s statutory obligation to move a higher court or tribunal against an order cannot be set in motion until the order re communicated to him. It cannot be denied that an order before it is made effective must be served on the person against whom the order is made Thus, from the point of view of the person who is affected by the order the order is made when it is communicated to him But this does not mean that until an order is communicated the order is not made at all. Notice u/s 29 of Income Tax Act presupposes an order of assessment u/s 23(1) or 23(3) Notice u/s 29 can only be served after an order of assessment is made. Thus, the making or passing of an assessment order, the issue of notice u/s 29, and service of notice or communication of MM assessment order are different stages or steps before an assessee pays the assessed tax. In other words the date of making the order, the date of issue of notice and the date when, the order is communicated need not necessarily be the same date. Admittedly, in the instant case, the order of assessment was made on 26th March, 1969, which is a date within 4 years after the end of the assessment year. It is true that the order of assessment has been communicated to the assessee on 1st April. 1959, which date falls 4 years after the end of the assessment year. But the date of communication of the order cannot be the date of making the order because communication presupposes the determination of the thing to be communicated. From the point of view of taxability or liability to pay tax on the par of the assessee the date of communication may be the most effective date. An order to be communicated must presuppose the existence of an order and the existence of the order is only possible when the Income tax Officer has made that order. From the point of view of Income Tax Officer, he has discharged the statutory liability to assess if he makes an order of assessment within 4 years after the end of the assessment year. The statute does not say that the Income Tax Officer must communicate the order of assessment within 4 years after the end of the assessment year. We, therefore, cannot accept the contention of the assessee that the date of communication of the order of assessment is the date of making the order.

For the reasons stated above the answer to the question should be made in the negative and against the assessee who will pay the costs of this reference.

Mitter, J.

I agree.