Decided on July 03,2003



D.K.SETH, J. - (1.)MR . Pal appearing for the appellant in this case has taken two grounds. One is in relation to notice under Section 154 of the IT Act, 1961, being Annex. 'M' at p. 142. Admittedly, the petitioner was in India for 172 days during the asst. yr. 1989 -90 and he was assessed as non -resident in the year of assessment. This notice was issued on 8th of January, 1996, long after expiry of four years from the end of the assessment year. The notice under Section 154 was issued on the ground that the petitioner could not be assessed as non -resident for the ,asst. yr. 1989 -90 by reason of the Expln. (b) under Section 6(1)(c) of the IT Act. Identical question arose in APOT No. 735 of 2002 (Vijay Mallya v. Asstt. CIT) disposed of by us on 12th May, 2003. In the said decision, we held that Section 154 could not be attracted in view of the uncertain situation as to which of the interpretation would be correct. It is not in dispute that facts are identical in both these cases. Having regard to the ratio decided and following the principle laid down in Vijaya Mallya (APOT. No. 735 of 2002) (supra), in this case, we hold that the impugned notice under Section 154 does not conform to the ingredients of Section 154 and, therefore, the same is illegal, invalid, bad in law and without jurisdiction.
(2.)THE other ground taken by Mr. Pal is related to two more notices issued by the authorities under Section 142(1), one of which is dt. 30th Nov., 1995, at p. 133 of the paper book. This notice is accompanied by the letter dt. 30th Nov., 1995, at p. 134 of the paper book in respect of asst. yrs. 1992 -93 and 1993 -94. In the said letter, authority had held that 'you are treated as ordinary resident and your claim of residential status as resident but not ordinarily resident is hereby rejected'. When a notice is being given in course of assessment for production of document to prove the non -residential status, there is no scope of determining the question finally without giving any opportunity and then call upon the assessee to prove that he is a non -resident. This is preposterous. In any event such a decision can be arrived at only in the assessment proceedings after giving opportunity to the assessee. The said observation in the notices amounted to prejudging the issue. Therefore, now we are required to examine whether the notice containing the decision arrived at about the status of the assessee can be sustained. Whether pursuant to the said notice, the assessee could be permitted to produce adequate proof to support its claim of non -residential status and seek reversal, of or a fresh decision in the assessment proceedings itself.
Another notice was issued on 8th Jan., 1996, in respect of the same asst. yrs. 1992 -93 and 1993 -94 accompanied by a letter of even date. The notice and the letter are at pp. 145 and 146 of the paper book. In the said notice, it was stated that the proceedings of each year are separate and independent and, therefore, the assessment for 1989 -90 assessing the assessee non -resident would not preclude the AO to assess the assessee as resident. The authority had jurisdiction to assess the assessee as resident for the asst. yrs. 1992 -93 and 1993 -94.

(3.)THERE is no doubt about the fact that the assessing authority has jurisdiction to decide the question. The decision of non -residential status in a particular year does not preclude the AO to assess the assessee as resident in subsequent year or years. Each assessment is independent and has to conform to the provisions of law applicable to that year. Whether in law the assessee was to be assessed as resident or non -resident is a question to be determined in the assessment proceedings. There cannot be any question of making up of mind or issuing threats to the assessee. The assessing authority cannot prejudge the issue and that too without opportunity and unilaterally. The notice seems to be an example of putting the cart before the horse. This can be done in the process of the assessment after giving opportunity to the assessee in accordance with law. That apart, the letter dt. 8th Jan., 1996, at p. 146 cannot preclude the assessee from substantiating his claim in the assessment proceeding about the nonresident status and the assessing authority from determining the same in accordance with law without being influenced by the observation made in the said letter dt. 8th Jan., 1996, at p. 146.

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