COMMISSIONER OF INCOME TAX Vs. GEORGOPOULES N D

JUDGEMENT

(1.) AT the instance of the revenue, the following two questions have been referred to us for our decision under s. 256(1) of the I.T. Act:

(2.) THE assessee in this case is carrying on business in hides and skins. For the assessment years 1967 -68 and 1968 -69, the ITO completed the assessment on March 29, 1972, and while doing so he charged interest under s. 217 of the I.T. Act, hereinafter referred to as the Act, amounting to Rs. 52, 110 for 1967 -68 and Rs. 57, 938 for the year 1968 -69 on the ground that the assessee should have filed an estimate of advance tax under s. 212 (3) but had failed to do so.

(3.) ACCORDING to the learned counsel for the revenue, the assessee cannot be said to have been subjected to regular assessment in that the assessee himself had admitted that there was no previous year for the assessment year 1965 -66 and there could not have been any valid assessment for that year and, therefore, in this case notwithstanding the closing of the assessment file as "N.A." for the year 1965 -66, the assessee should be taken as not having been previously assessed by way of regular assessment, in which case he is under an obligation to submit an estimate under s. 212(3). As pointed out by the Supreme Court in Esthuri Aswathiah v. ITO and CIT v. M. K. K. R. Muthukaruppan Chettiar the question whether the original assessment proceedings had been properly terminated has to be considered on the facts and circumstances of each case. According to the learned counsel for the revenue, all the provisions dealing with advance tax should be read harmoniously, and if so read, an assessment which has not resulted in any tax liability cannot be taken to be an assessment by way of regular assessment, for purposes of s. 212(3). We are of the view that the question whether a particular assessee has been assessed earlier to income -tax does not depend upon the question as to whether any tax liability has arisen out of the assessment and that even if there is no actual tax liability the assessment which has been made in accordance with the provisions of the Act does not cease to be an assessment.