RAM SINGH UPPAL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE petitioner filed ITC 85/80 under s. 256(2) of the IT Act relating to the asst. yrs. 1941-42 to 1945-46, i.e. five assessment years in all. THE application was directed against the rejection of the applicant's five applications under s. 256(1) of the Act relating to there five years. A preliminary objection was taken regarding the maintainability of one application for five assessment years on the basis of our judgment in Nawal Bihari Lal Goel vs. CIT (1983) 32 CTR (Del) 287 : (1983) 140 ITR 979 (Del). In that case also, in relation to four assessment years, one application had been filed and we had held that it could not be described as an error which could be condoned by permitting three additional application being filed. We are of the view that the same position would hold true in the present case except for the fact that there is an exceptional circumstance, which has been brought to our notice by the learned counsel. Four new applications have been filed under s. 256(2) along with the applications for condoning the delay. We will now deal with the question whether the delay should be condoned especially in the circumstances of this case.

(2.) THE facts of the case are that while dealing with the assessment of the petitioner for subsequent years, the ITO came to the conclusion that income for several previous year had escaped assessment and accordingly the ITO got permission from the CBR under s. 34(1)(a) to reopen the case. THE proviso to that provision fixes eight years as the limit for reopening the case under s. 34 (1)(a), but provides that in case the amount which has escaped assessment amounts to more than Rs. 1 lakh in aggregate for a certain period, then the case can be reopened in spite of the limitation period having expired provided the CBR gives permission. Acting under this proviso, the ITO got permission to reopen the case for asst. yrs. 1941-42 to 1945-46, i.e. five years on the ground that the income that has escaped assessment for this period was more than Rs. 1 lakh. This is how the limitation period of eight years was overcome and the assessment was reopened by a notice served on 1st Dec., 1961. Learned counsel submits that if five years are not clubbed together, then reopening cannot be done in any of the years and, thereof, it was thought that only one application had to be moved because all the five years had been clubbed together. Keeping in view that this is an exceptional circumstance, we would condone the delay in the filing of the four additional applications, as treating the application for only one of the years as being within time might lead to contradictory orders being passed. THE five years were treated as one composite period by the IT Department and, therefore, the orders is this case on merits must also be in relation to all the five years. (THE Civil Misc. applications praying for condoning the delay are thus disposed of).