Judgment:
Sushanta Chatterji, J.
1. At the instance of the Commissioner of Income-tax, Orissa, moving an application under Section 256(1) of the Income-tax Act, 1961, the following question has been referred to:
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessment for the assessment year 1979-80 made under Section 143(3) read with Section 144B of the Income-tax Act, 1961, was barred by limitation and cancelling it?'
The matter arises out of the income-tax assessment of the assessee for the assessment year 1979-80 for which the previous year ended on December 31, 1978. A draft order of assessment under Section 144B(1) of the Income-tax Act, 1961, was made on March 16, 1982. It was despatched, vide letter dated April 8, 1982. It was received by the assessee on April 19, 1982, Directions under Section 144B(4) were received by the Income-tax Officer on August 21, 1982. The final order of assessment was made in September, 1982. The exact date of assessment was not intimated. However, it was after September 3, 1982, the last date of hearing given by the Income-tax Officer to the assessee. The final order of assessment was made forming part of the statement of the case. In an appeal before the Commissioner of Income-tax (Appeals), objection was raised by the assessee that the assessment itself was barred by limitation inasmuch as the draft assessment order was forwarded to the assessee only on April 8, 1982. The Commissioner of Income-tax (Appeals), noticing the fact that the draft assessment order was despatched from the office of the Income-tax Officer on April 8, 1982, agreed with the contention of the assessee that in normal circumstances the assessment would have been barred by limitation. However, he thought of a saving factor which could not have been overlooked and that was that the Income-tax Officer had made the following entry on March 16, 1982, on the order sheet in the relevant file :
'Assessed under Section 144B on a total income of Rs. 5,44,690. Forward a copy of the order to the assessee inviting objection to it, if any.'
The assessee preferred an appeal before the Tribunal. The Tribunal recorded a finding, thinking of the Commissioner of Income-tax (Appeals) that the forwarding date of the draft order could be taken as March 16. 1982 (sic). The notings in the income-tax file were mere directions to the office by the Income-tax Officer to forward the draft order. They could not be deemed as the forwarding of the draft order itself. The Income-tax Officer has given directions to his office for forwarding the draft order but the draft order was never put in transmission nor was it sent or despatched to the assessee on that date. The draft in the present case was in fact forwarded to the assessee on April 8, 1982, on which date it was despatched by the office of the Income-tax Officer. On such finding of facts, the assessee's appeal was allowed by the Tribunal and the Revenue's appeal was dismissed as infructuous.
2. Our attention has been drawn to a decision in CIT v. Om Agencies : [1994]207ITR794(Orissa) , where the court recorded that Section 144B concerns two acts, i.e., (a) the making of a draft order, and (b) forwarding the same to the assessee. Extension is available where it is shown that the Assessing Officer had forwarded a draft assessment order in terms of Section 144B before the expiry of the two-year period applicable in normal cases. If the Income-tax Officer fails to establish that he has forwarded the draft assessment order before the prescribed period of two years, the proceeding shall be barred by limitation. The findings as made by the Tribunal on appreciation of the materials on record cannot be the subject-matter of scrutiny before us. The principles observed in the aforesaid case CIT v. Om Agencies : [1994]207ITR794(Orissa) clearly indicate, inter alia, that a direction to send or despatch, without the act being actually carried on, cannot constitute forwarding. Applying the ratio of the said decision, in the facts and circumstances of the present case, we find that the Tribunal has rightly decided and we accordingly answer the question in the affirmative, that is, in favour of the assessee and against the Revenue. There will be no order as to costs.
D.M. Patnaik, J.
3. I agree.