Decided on March 24,1994



S. Bandyopadhyay, Accountant Member - (1.) THE assessee is an Excise Contractor. For this transaction year, his previous year ran through the period of twenty-one months from 1-7-1987 to 31-3-1989. During the relevant previous year, the assessee carried on business as Excise contractor in the line of toddy in Gulbarga district during the period from 1-7-1987 to 30-6-1988, at Belur and Tiptur taluk from 1-7-1987 to 31 -3-1989, at Bellary taluk also throughout the period from 1-7-1987 to 31-3-1989 and at Hyderabad in Andhra Pradesh for a short period from 1-7-1987 to 30-9-1987. So far as Hyderabad is concerned, this year's business was the continuation of the Excise contract taken by the assessee in the immediately previous year. In addition to the abovementioned toddy business, the assessee also had arrack contract in Hassan District. In the immediately preceding year, exactly the same business was carried on by the firm M/s. S.B. Gowdaiah and Sons in which the assessee and his father were partners. On death of the said father however, sometime in April/May 1987, the entire business fell on the shoulders of the assessee and he carried it on for a small period of two to three months only as a proprietor in the immediately preceding year also.
(2.) The assessee did not file his return of income within the time prescribed under Section 139(1). The Assessing Officer issued a notice under Section 148 and also another notice under Section 142(1) of the Act calling for the return of income, both on 21-1-1991. The assessee filed his return of income on 1-4-1991 declaring the net loss of Rs. 22,52,910. Thereafter, the assessee also filed another return on 13-1-1992 showing net loss of Rs. 15,88,300. The assessment order shows that the assessment was finally made by the Assessing Officer on 27-3-1992 at the total figure of income of Rs. 2,02,38,600 under Section 143(3) of the Act. Before the CIT(A) and before us also, the assessee challenged the validity of the proceeding taken pursuant to the issue of notice under Section 148. It has been pointed out that the notice under Section 148 was actually issued in the old form asking the assessee to file his return of income within a period of 30 days from the date of service of the notice. The learned Counsel for the assessee, Sri. K.R. Prasad, strongly contended before us that since under the amended provisions of Section 148, the assessee is entitled to the time period of not less than 30 days for filing his return of income, the notice issued by the department under Section 148 has got to be considered to be invalid and bad in law in accordance with the decision of the Karnataka High Court in the case of Winter Care (P.) Ltd. in [WP No. 33832 of 1992, dated 15-2-1993]. Sri Prasad also relied on a plethora of decisions of High Courts as well as Supreme Court as mentioned below, to strengthen his argument: 1. Mir Iqbal Hussain v. State of U.P. [1964] 52 ITR 625 (All.) 2. Tansukhrai Bodulal v. ITO [1962] 46 ITR 325 (Assam) (FB) 3. CIT v. Nanalal Tribhovandas [1975] 100 ITR 734 (Guj.)
(3.) CIT v. Kurban Hussain Ibrahimji Mithiborwala [1971] 82 ITR 821 (SC);

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