R K SAWHNEY Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) An assessment order was made on 28-3-1974 in respect of the income earned by Shri Nathu Ram during the previous relevant to the assessment year 1971-72. The assessee had filed a return on 1-2-1972 but passed away oh 20-7-1972. The assessment was challenged in appeal by the legal representative on the ground that no notice had been issued to the legal representatives before the completion of the assessment The Appellate Assistant Commissioner accepted this plea but. instead of annuling this assessment order, as contended for by the assessees, sent the matter back to the Income-tax Officer to complete the assessment afresh after giving the legal representatives due notice. The assesses preferred a further appeal to the Tribunal but with no success. The Tribunal held that the completion of the assessment without prior notice lo the legal representatives was merely an irregularity and that this could be cured by setting aside the assessment and directing a fresh assessment in accordance with the law after proper notice. An objection was also taken befors the Appellate Tribunal of the rime of hearing that, by so setting aside the assessment and directing a fresh assessment, the Tribunal would beextending the ordinary period of limitation available for completion of. all assessment since a re-assessment in pursuance of such a direction could be governed by the provisions of Section 153(3) which removed the bar of limitation ordinarily applicabie in respect of the assessment. But this contention was also rejected by the Tribunal.

(2.) In pursuance of the order of the Tribunal a fresh assessment was made on the executors of the will of late Shri Nathu Ram on 10-9-1979. The assessee preferred objections to the Appeilate Assistant Commissioner and the Appellate Tribunal reiterating his contentions that the assessment dated 10-9-1979 was barred by innitation and could not be saved by what was claimed to be invalid direction given by the Tribunal. The Tribunal, however, rejected these contentions on the short ground that these pleas had already been raised by the assessee in the earlier appeal to the Tribunal. The Tribunal had dis- posed of these contentions and though the assessee preferred a petition under Section 256(1) from the order of the Tribunal, he had not pursued the matter further under Section 256(2) when the Tribunal' dismissed the application under Section 256(1). Thus, the earlier order of the Tribunal had become final and the issues settled therein could not be agitated again.

(3.) The assessee applied for a reference to this court of the following questions of law said to arise out of the order of the Tribunal disposing of the appeal for the second time :