COMMISSIONER OF INCOME TAX Vs. MAMTA TIWARI

JUDGEMENT

(1.) BY this reference under Section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), the Income-tax Appellate Tribunal, Indore Bench, has referred the following question of law to this court for its opinion :

(2.) THE material facts giving rise to this reference, briefly, are as follows:

(3.) LEARNED counsel for the assessees referred to a number of decisions holding that reassessment proceedings under Section 147 of the Act cannot be regarded as part of regular assessment proceedings for the purpose of levying penalty under Section 273 of the Act (See Gates Foam & Rubber Company v. CIT [1973] 90 ITR 482 (Ker), CIT v. Ram Chandra Singh [1976] 104 ITR 77 (Pat), Smt. Kamla Vativ. CIT [1978] 111 ITR 248 (P & H), CIT v. Ganeshram Nayak [1981] 129 ITR 43 (Orissa), D. Swarup, ITO v. Gammon India Limited [1983] 141 ITR 841 (Bom), CIT v. Pratap Singh of Nabha [l982] 138 ITR 27 (Delhi) and CIT v. Smt. Jagjit Kaur [1980] 126 ITR 540 (All)). It appears to be the view of the majority of the High Courts that an assessment under Section 147 of the Act cannot be regarded as part of assessment proceedings under Section 143 or 144 of the Act. Section 148 of the Act refers to assessment under Section 147. Therefore, assessment under Section 147 cannot mean the same thing as assessment under Section 143 or Section 144 of the Act. That is why an amendment was made in Section 215 of the Act by the Taxation Laws (Amendment) Act, 1984, whereby Sub-section (6) was inserted in Section 215 providing that when in relation to an assessment year an assessment is made for the first time under Section 147, the assessment so made shall be regarded as a regular assessment for the purpose of Sections 215, 216, 217 and 273 of the Act. But for this deeming provision, an assessment made for the first time under Section 147 could not have been held to be a "regular assessment" as contemplated by Section 273 of the Act. It was urged before us that just as an assessment under Section 147 is not part of an assessment under Section 143 or 144 of the Act, similarly amendment (of assessment) under Section 155 of the Act cannot be held to be part of the assessment under Section 143 or 144 of the Act. To appreciate this contention, it-is necessary to ascertain the nature of an order passed under Section 155 of the Act.