IN HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 284 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 285 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/- and HONOURABLE MR.JUSTICE A.C. RAO Sd/- 1 Whether Reporters of Local Papers may be allowed to Yes see judgment ? 2 To be referred to Reporter or not ? Yes 3 Whether their Lordships wish to see fair copy of No judgment ? 4 Whether this case involves substantial question of law No as to interpretation of Constitution of India or any order made thereunder ? GAURAVBHAI HARGOVINDHAI DAVE Versus TAX RECOVERY OFFICER 4 Appearance: UMAIDSINGH BHATI(7973) for Petitioner(s) No. 1 MRS MAUNA M BHATT(174) for Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Page 1 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT Date : 05/08/2019 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. As issues involved in both captioned writ applications are same, those were heard analogously and are being disposed of by this common judgment and order. 2. two captioned writ applications are filed by husband and wife respectively in their capacity as Directors of Company running in name of M/s. Shivam Water Treaters Pvt. Ltd. 3. For sake of convenience, Special Civil Application No.285 of 2019 is treated as lead matter. 4. By this writ application under Article 226 of Constitution of India, writ applicant has prayed for following reliefs: (A) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction, quashing and setting aside impugned orders of attachment dated 01.03.2012 and 19.12.2018, order setting proclamation dated 29.10.2018 and 19.12.2018 and proclamation of sale dated 21.12.2018 as being bad, illegal, unjust, unreasonable, arbitrary, violative of principles of natural justice and contrary to law. (B) YOUR LORDSHIPS may be pleased to stay implementation, operation and execution of Proclamation of Sale dated 21.12.2018 (Annexure- E ) issued by Respondent pending admission, hearing and final disposal of this Petition. (C ) YOUR LORDSHIPS may be pleased to grant such Page 2 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT other and further reliefs as may be deemed fit by this Hon'ble Court, in interest of justice. 5. writ applicant seeks to challenge following orders: (i) order of attachment (ITCP-16) of Plot No.7, Vibrant Villa, Opp. Sanskardham, Bopal-Sanand Road, Manipur, Ahmedabad dated 01.03.2012 and 19.12.2018 respectively issued under Rule 48 of Second Schedule to Income Tax Act, 1961. (ii) notice for setting sale proclamation (ITCP-17) dated 29.10.2018 and 20.12.2018 respectively in connection with three properties including property belonging to petitioner, i.e, Plot No.7, Vibrant Villa, Opp. Sanskardham, Bopal-Sanand Road, Manipur, Ta: Sanand and District- Ahmedabad issued under Rule 53 of Second Schedule to Income Tax Act, 1961. (iii) proclamation of sale (ITCP-13) dated 21.12.2018 published in Times of India and Sandesh respectively dated 22.12.2018 in respect of public auction of three properties including property belonging to Petitioner i.e. Plot No.7, Vibrant Villa, Opp. Sanskardham, Bopal-Sanand Road, Manipur village, Sanand issued under Rules-38 & 52(2) respectively of Second Schedule to Income Tax Act, 1961 & published in News Paper- Times of India on 22.12.2018. 6. It appears from materials on record that Page 3 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT Company, namely, Shivam Water Treaters Pvt. Ltd declared its total income for A.Y. 2010-11 to tune of Rs.21,31,12,730/- total tax payable came to Rs.8,20,27,000/-. Department acknowledged receipt of income as declared by assessee. amount of tax payable, as declared by assessee, was accepted by Department without any query. 7. acknowledgment under 143(1) of Act, ultimately, led to assessment proceedings under Section 143(3) of Act. 8. chronology of dates and events, after order under Section 143(3) of Act came to be passed, as furnished by Revenue is as under: Sr. Date Particulars No. 1 04/10/11 Order U/s. 179 of I.T Act, 1961 came to be passed by fixing liabilities upon directors of company viz. Shri Gaurav H. Dave & Smt. Amiben G. Dave. 2 29.11.2011 R.C. Received for certified demand of Rs.8,71,86,510/- for A.Y. 2010 & Rs.7,25,920/- for A.Y. 2008-09 from A.O. Thereafter ITCP-1 issued by then TRO-8 (Now TRO-4, Ahmedabad) on 29.11.2011 and served upon assessee on 01.12.2011. 3 04/01/12 Show-cause notice issued to both directors for payment of Self-Assessment Tax u/s. 140A of Act, for A.Y. 2010-11. 4 20.01.2012 Various immovable properties in name of assessee company and director's name were attached, in ITCP-16 of Income Tax Act. 5 06/02/12 Notices u/s. 226(3) of I.T. Act, 1961 were issued to various debtors and banks of Page 4 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT assessee company. 6 01/03/12 Various immovable properties in name of assessee company and directors name were attached, in which properties Vibrant Villa, Village-Manipur, TA- Sanand (Plot No.7,45,48 &n 70) and Meghanshwood (Plot No.4 to 11), Village-Chekhla, TA- Sanand also included. 7 12/09/12 Notice u/s. 226(3) of I.T Act, 1961 were issued upon various debtors and banks of assessee company. 8 28.09.2012 Order u/s. 221(1) of Act was passed on 28.09.2012 levying penalty of Rs.1 Crore due to non-payment of self-assessment tax. 9 15.02.2013 proclamation of sale notice for open plots in Vibrant Villa, Village-Manipur & Meghanswood, Village-Chekhla, TA- Sanand was published in daily newspapers on 17.02.2013 for auction of immovable properties and I.T. C.P 17 issued to Shri Gaurav H. Dave & Smt. Amiben G. Dave, they refused to accept said notice, therefore, notice was affixed and signature of two witnesses were taken. 10 25.02.2013 letter from M/s Metroglobal Limited was received through its company Secretary Shri Nitin S. Shah objecting auction proposed for above mentioned open plots. 11 18.03.2013 Order u/s. 143(3) of I.T. Act, 1961 was passed on 18.03.2013 for A.Y. 2010-11 and as result demand of Rs.1654.01 Lakhs was raised. (P/127) 12 Assessee filed petition before this Hon'ble Court against proclamation notice and letter on assessee withdrew writ. 13 15.04.2013 Assessee submitted proposal for making part payment against outstanding demand. But assessee did pay any demand. 14 16.04.2013 Order of this Court in SCA No.1866 of 2013 dated 16.04.2013 is reproduced as under:- Learned counsel Shri Tushar Hemani for petitioner stated that upon representation of Page 5 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT petitioner, commissioner of Income Tax is in process of granting installments for payment of tax dues. At this stage, he therefore, under instructions, does not press this petition. Disposed of accordingly. Notice is discharged. 15 24.07.2013 Payment against second charges of Income Tax department on securities offered to bank and focus on dues of company towards income tax department for repayment and schedule assessee company's letter dated 24.07.2013. 16 11.12.2013 Notices u/s. 226(3) of I.T Act, 1961 were & issued upon various debtors of assessee 12.12.2013 company. 17 30.01.2014 Notices u/s. 226(3) of I.T. Act, 1961 were issued upon various debtors of assessee company. 18 15.02.2015 Notice u/s. 226(3) issued upon Defence Laboratory, Jodhpur and requested to issue demand in favour of Income Tax department at earliest. 19 18.11.2015 Summons under Rule 83 of Second Schedule to Income Tax Act, 1961 issued on 18.11.2015 upon principal officer of M/s. Shivam Water Treaters Pvt. Ltd to attend on 26.11.2015 at 11:30 A.M. Nobody attended on given time. 20 10.03.2016 Notice u/s. 226(3) of I.T Act, 1961 were & issued upon various debtors of assessee 21.04.2016 company. 21 12/09/17 Summon under Rule 83 of Second Schedule to Income Tax Act, 1961 issued on 18.11.2015 upon principal officer of M/s. Shivam Water Treaters Pvt. Ltd to attend on 26.11.2015 at 11:30 A.M. Nobody attended on given time. 22 05/11/17 Valuation report received from DVD-1 Ahmededabad on 05.11.2018 in case of Meghansh Woods, Village-Chekhal- TA- Sanand. 23 27.12.2017 Order u/s. 179 of I.T Act, 1961 was Page 6 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT passed by A.O. for outstanding demand for Rs.1907.90 for A.Y. 2009-10 to A.Y. 2012- 13 and fixed liability upon directors of company that Shri Gaurav H. Dave & Amiben G. Dave (P/165) 24 29.12.2017 Letter sent to Valuation Officer for valuation Report in case of Meghansh Woods, Village-Chekhla, TA-Sanand & Vibrant Villa, Village Manipur, Ta-Sanand. 25 29.01.2018 Information to Draw Recovery Certificate in Form 57 in case of M/s Shivam Water Treaters Pvt. Ltd for recovery of outstanding demand of Rs.1453.99 Lacs for A.Y. 2010-11 to 2014 received from A.O 26 21.02.2018 recovery survey action conducted on 21.02.2018 at 201 to 204, Shital Varsha Arcade, C.G. Road, Navrangpura, Ahmedabad. Two bank accounts were found and same were attached, resultant Rs.1.87 Lakhs was recovered from banks. During course of survey proceeding it was stated that books of accounts were with Auditor and same would furnished on 26.02.2018. 27 22.02.2018 Request for giving installments against payment of IT Dues for Self Assessment Tax for A.Y. 2010-11 & other years filed by assessee before Addl. CIT, Range- 4(1), Ahmedabad & DCIT, Circle-4(1)(1), Ahmedabad. 28 26.02.2018 Summons under Rules 83 of Second Schedule to Income Tax Act, issued but no one attended in time given. 29 22.02.2018 Notice u/s. 226(3) were issued to all & debtors and bank account details gathered 27.02.2018 during survey proceedings. 30 19.03.2018 CIT (A) dismissed appeal for A.Y. 2010-11 (P/148) 31 20.03.2018 Summons under Rules 83 of Second Schedule to Income Tax Act, 1961 were issued to Manager, Allahabad Bank, SP Nagar Branch & Manager, Canara Bank, Isanpur Page 7 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT Branch, Ahmedabad. 32 22.04.2018 After survey proceedings and as per available details i.e. return of income, ITS, 360 degree profile, all bank accounts and properties in name of directors were attached. Two bank accounts maintained with Punjab National bank and ICICI Bank were found and same were attached. Resultanty some recovery of Rs. Rs.8,08,310/- was instantly made from Punjab National Bank and it was also intimated by bank that there were Fixed Deposits in form of Bank Guarantee held with Punjab National Bank amounting to Rs.41,70,268/-(31,43,559 + 10,26,709). Out of Rs. 31,43,559 bank FDs Rs. 21,54,400/- and Rs. 6,72,830/- had already been collected from bank and balance FDs will be matured schedule as under:- Sr. FS Open Date Maturity date Amount No. 1 23.01.2017 23.07.2019 Rs. 1,24,368/ 2 23.01.2017 23.07.2019 Rs.32,443/- 3 08/06/17 08/06/19 Rs. 5,14,861/- 4 19.12.2017 19.02.2020 Rs. 3,17,487/- Details of bank guarantees details will be matured schedule as under: Page 8 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT Sr. Open Date Maturity Date Amount No. 1 23.01.2017 23.07.2019 Rs. 60,216/- 2 08/02/18 08/08/23 Rs.2,93,663/- Above balances will Fds/guarantees will be collected from bank as when it's matured 33 29.08.2018 Summons under Rule 83 of second Schedule to Income Tax Act, 1961was sent to Shri Gaurav H. Dave & Smt. Amiben G. Dave on 29.08.2018 to attend office of department on 06.09.2018 but none attended on given date and time. 34 25.04.2018 letter from Manager, Punjab National Bank, Navrangpura Branch, Ahmedabad received by this office wherein it was stated that Shri Gaurav Dave, Director of company has sent WhatsApp message from his mobile, by stating that appropriate direction was issued to CIT(Cir.8) Ahmedabad to grant permission to pay arrears of self assessed tax for A.Y.2010-11 amounting to Rs.72,48,908.24/with interest of Rs.4,34,934.49/by 31/3/2019 along-with release of bank accounts pertaining to CBDT Order OM-374/A/III/2011. But this office has not received any such direction for revocation of bank accounts which were attached by this office. 35 27.04.2018 Summons under Rule 83 of Second Schedule to Income Tax Act, 1961 were issued to Shri Gaurav H. Dave & Amiben G. Page 9 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT Dave on 27.04.2018 to attend office on 01.05.2018 at 12:00 PM & 11:00 AM respectively but no one from them attended in given time. 36 27.04.2018 summons was issued to Shri Naren Jhadkia, Chief Manager, Punjab National Bank, Navrangpura Branch, Ahmedabad and his statement was recorded on oath on 27/4/2018. On being asked following questions i.e. Mode of receipt of said letter, name and identity of person delivering letter, identity of employee of bank who received letter, details of other such letters received by bank if any. In answer to above questions Shri Naren Jhadkia, Chief Manager, Punjab National Bank, Navrangpura Branch, Ahmedabad has stated that on 24/4/2018, Mr. Gaurav Dave, authorised signatory of M/s. Shivam Water Treaters Pvt. Ltd. has sent him WhatsApp message at 11.23 am from his mobile No.9824052338. message was containing photocopy of letter dated 16/04/2018 issued by Pr. Chief Commissioner of Income tax, Ahmedabad, addressed to M/s. Shivam Water Treaters Pvt. Ltd., contention of said letter was that Pr. CCIT, Ahmedabad has admitted its appeal and issued appropriate directions to CIT, Circle-8, Page 10 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT Ahmedabad to grant permission to pay arrears of self assessed tax for A.Y. 2010-11 amounting to Rs.72.49 lakhs with interest of Rs.4.35 lakhs by 31/03/2019 alongwith release of banks accounts pertaining to CBDT order OM-374/A/III/2011. It is also mentioned that reference for same shall be issued to concerned institutions and banks by appropriate authorities as defined in said CBDT order. He has also received telephonic call from Mr. Gaurav Dave, Director of Co. from Mob. No.9824052338 with request to ensure that bank does not delivered any such letter to Income-tax Department. This office has also informed to concern A.O. to take necessary action for launching prosecution against above defaulter for forged letter. 37 02/05/18 Summons under Rule 83 of Second Schedule to Income Tax Act, 1961 were issued to Shri Gaurav H. Dave & Smt. Amiben G. Dave on 02.0.2018 to attend in this office on 07.05.2018 at 11:00 AM & 11:30 AM but they did not attend in this office on time given in summons. 38 07/05/18 Summons under Rule 83 of Second Schedule to Income Tax Act, 1961 were issued to Shri Gaurav H. Dave & Smt. Amiben G. Dave on 07.0.2018 to attend in this office on 14.05.2018 at 11:00 AM & 11:30 AM but they did not attend in this office on time Page 11 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT given in summons. 39 14.05.2018 Summons was sent on 14.05.2018 for appearance of Dr. Hinesh Acharya, MD Physician of Parekhs Hospital to personally attend office. 40 25.09.2018 Valuation report received from DVD-1, Ahmedabad in case of open plots in Vibrant Villa, Village Manipur, TA Sanand. 41 16.10.2018 Order under Section 220(2) passed-(P/177) 42 23.10.2018 Information to draw Recovery certificate in Form 57 in case of M/s Shivam Water treaters Pvt. Ltd. for recovery of outstanding demand of Rs.16,55,78,464/including interest u/s 220(2) of I.T. Act, 1961 of Rs.3,70,86,487l(upto 16.10.2018) for A.Y. 2010-11 was received from A.O. i.e. DCIT, Circle 4(1)(1), Ahmedabad. 43 29.10.2018 public notice was published in daily news papers on 29.10.2018 regarding any objection proposing auction open plots in Virbant Villa, Village Manipur, TA Sanand. 44 29.10.2018 ITCP-17 notice for setting sale proclamation for plot No.7,45,48 of Vibrant Villa, Village Manipur, TA Sanand issued and served upon assessee 30.10.2018 through affixure and E-mail. 45 02/11/18 Letter received from Hema Shah Insolvency Resolution Professional regarding Initiation of CIRP in respect of Shivam Water Treaters Pvt. Ltd. 46 20.11.2018 I.T.C.P. 17 issued on 20.11.2018 for Plot No. Page 12 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT 4 to 9, Meghansh Woods, Village Chekhla, TA Sanand. 47 20.11.2018 ITCP 17 Notice for setting sale proclamation was issued on 20.11.2018 and served upon assessee on 05.12.2018 by affixture and E-mail. 48 28.11.2018 Advertisement for proclamation for sale of immovable property i.e. Vibrant Villa, Village Manipur, TA Sanand published in daily news papers on 30.11.2018 and auction proposed on 20.12.2018. 49 30.11.2018 Form F (regarding submission of claim/proof of claim by creditors) was submitted before Interim Resolution Professional (C.A. Hema Manoj Shah, Insolvency Resolution Professional) 50 04/12/18 I.T.C.P.-17 Notice for setting sale proclamation for Plot No.10 & 11, Meghanshwood, Village Chekhla, TA Sanand. 51 04/12/18 ITCP-1/Form 57 dated 04.12.2018 for sum of Rs. 3,70,86,487linterest u/s 220(2) of I.T. Act, 1961 upto 16.10.2018 was issued and served through affixure on 05.12.2018 upon assessee. (P/ 181) 52 05/12/18 Public Notice issued in daily news papers published on 06.12.2018 regarding if any person he/she has objection with regard to auction proposed for Plot No.4 to 11, Meghanswoods, Village Chekhla, TA Sanand. 53 06/12/18 Intimation regarding public auction to be held on 20.12.2018 was sent to Shri Gaurav H. Page 13 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT Dave & Smt. Amiben G. Dave. 54 14.12.2018 Special Civil application No. 19670 of 2018 & 19672 of 2018 were filed by Shri Gaurav H. Dave & Smt. Amiben G. Dave respectively wherein following grounds were raised, as under : 1. Non allowance of 30 days time from date of notice proclamation of sale in I.T.C.P. as per Rule 55 of Second Schedule of Income Tax, 1961. 2. Auction and sale of immovable property should be complete within 3 years from end of financial year when demands under question become conclusive or final, as per Rule 68B of Second Schedule of Income Tax Act, 1961. 3. Proclamation must be in vernacular language i.e. Gujarati in case was not done, as per Rule 38 of Second Schedule of Income Tax Act, 1961. 55 19.12.2018 ITCP-16 attachments of immovable properties were issued on 19.12.2018 for Vibrant Villa, Village Manipur, TA Sanand & Meghanshwood, Village Chekhla, TA Sandand.(P/38) 56 20.12.2018 ITCP-17 notice for setting sale proclamation was issued on 20.12.2018 and served upon assessee through Speed Post and mail. (P/43) 57 21.12.2018 Advertisement for proclamation of sale of Page 14 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT Immovable property in daily news paper on 22.12.2018 were published and auction for open plots in vibrant Villa, Village Manipur, TA Sanand proposed on 22.01.2019. (P/44) 9. Thus, writ applicant is aggrieved by action of revenue department putting attached properties for sale by issue of proclamation for purpose of recovery of tax amount due and payable by Company, in which, writ applicant is one of Directors. As noted above, order under Section 179 of Act also came to be passed by Assessing Officer. order passed under Section 179 of Act attained finality. same was not challenged by writ applicant at any point of time. Submissions on behalf of writ applicant: 10. Mr. Bhati, learned counsel appearing for writ applicant vehemently submitted that time limit for sale of attached immovable property having been elapsed, property should be released from attachment. To fortify his submission, Mr. Bhati has placed reliance on Rule 68B of Second Schedule to Act, 1961. According to Mr. Bhati, no sale of immovable property is permissible after expiry of three years from end of financial year, in which, order, giving rise to demand of any tax, has become conclusive in terms of provisions of Chapter- XX. According to Mr. Bhati, notice under Section 143(1) of Act which came to be issued upon writ applicant should be construed as order for purpose of Rule 68B, giving rise to Page 15 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT demand of tax and same having become conclusive in terms of provisions of Chapter-XX, it is not open now or rather permissible in law for department to put attached immovable properties for sale. second submission of Mr. Bhati is that order passed under Section 143(1) of Act should be construed as order for purpose of Rule 68B, giving rise to demand of any tax having become conclusive in terms of provisions of Chapter-XX because pursuant to such order, further orders of attachment were passed. To put it in other words, according to Mr. Bhati, attachment order came to be passed not pursuant to final order passed under Section 143(3) of Act, but under Section 143(1) of Act. third submission of Mr. Bhati is that order under Section 143(1) of Act could be said to have become conclusive in terms of provisions of Chapter-XX because although writ applicant preferred appeal before CIT (A) against final order of assessment passed under Section 143(3) of Act, liability to pay tax, as determined under Section 143(1) was not questioned in said appeal. To put it in other words, appeal was preferred on various other counts and, ultimately, said appeal before CIT (A) failed and was ordered to be dismissed. Against order passed by CIT (A), appeal now is pending before Income Tax Appellate Tribunal. In such circumstances, referred to above, according to Mr. Bhati, now there is no scope for department to put attached immovable property for sale as time period has expired as prescribed under Rule 68B of Second Schedule to Act. 11. Mr. Bhati also thought fit to tender his submissions in Page 16 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT writing. written submissions are as follows: As sale of Plot No.7, Vibrant Villa (attached property) of Petitioner could not take place within three years from end of Financial year in which order(s) giving rise to demand (of any tax, interest etc.) become final, impugned attachment order [Page No.34 to 37] may be vacated in view of provisions of Rule 68B(4) of Second Schedule to Income Tax Act, 1961 because of following: 1. attachment of above property was made [ITCP-16 dated 01.03.2012 & 19.12.2018-Page Nos. 34 & 36] pursuant to demands [ITCP-l dated 14.10.2011, 29.11.2011 & 04.12.2018 Page Nos. 98, 100 & 177] raised from following three orders only and not against order u/s 143(3) for A.Y.2010-11 dated 18.03.2013: (a) Intimation u/s 143(1) dated 11.04.2011 for A.Y.2010-11 raising demand of Rs.8,71,86,512/-, which remained unchallenged under Chapter XX and hence became final during F.Yr.2011-12 and (b) Assessment Order u/s 143(3) for A.Yr.2008-09 dated 14.12.2010 thereby creating demand of Rs.7,25,920/-, above Assessment Order was also not challenged by assessee company as provided under Chapter XX to Act and hence final during F.Yr.2010-11. (c) Order u/s 220(2) dated 16.10.2018 [Page No. 173 to 176] quantifying consequential Interest in respect of order issued u/s 143(1) dated 11.04.2011 as mentioned In original ITCP-1 dated 14.10.2011 & 29.11.2011. Word order' has not been defined In Income Tax Act, 1961. As per Black's Law Dictionary order means command, direction or Instruction. Here Impugned Intimation was command to assessee company to pay Rs.8.71 crores. Moreover, Intimation is order u/s 246 and 246A of Income Tax Act, 1961. Further, recently Hon ble DeIhI High Court in case of Epcos Electronic Components S.A. v/s Union of India [2019] 107 taxmann.com 227 (Del) after distinguishing judgement of Page 17 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT Hon'bIe Supreme Court In case of Rajesh Jhaveri Stock Brokers Private Limited has held that intimation is subject to revision u/s 264 which is also part of Chapter XX of Income Tax Act, 1961. 2. Thus, no sale of above property shall be made after 31.03.2015 and above attachment orders are liable to be vacated. 3. Regarding Rule 68B two aspects need to be considered by Hon'ble Court: I. ... order giving RISE' to demand of any tax ... II. ... become conclusive under provisions of section 245-1 or, as case may be, FINAL' in terms of provisions of Chapter XX:" 4. In case of petitioner, order which gives rise to demand of Rs. 8.71 crores is order u/s 143(1)(a). It Is contended by respondent that order u/s 143(1) (a) merges with order u/s 143(3) post scrutiny assessment. But, fact remains that demand of Rs.8.71 crore in question was originally raised vide order u/s 143(1)(a). In order to determine, when order giving rise to demand of Rs. 8.71 crores became final, kindly refer to section 220(2) of IT Act. As per section 220(2) interest on amount of Rs.8.71 crores has been charged after 30 days from date of issue of order u/s 143(1) and not from date of order u/s 143(3), as evident from order u/s 220(2) dated 16.10.2018 [Page No.174] This clearly shows that demand was raised u/s 143(1). If contention of respondent regarding merger of orders is to be accepted, interest on amount in question should have been charged from date of order u/s 143(3). 5. petitioners thereafter never filed appeal u/s 246A of I.T. Act, 1961 (Chapter XX) against order u/s 143(1)(a) due to which said order became final for purpose of Rule 68B of Second Schedule to Income Tax Act, 1961. 6. Answering to Para-1 of Synopsis filed by respondents, section 156 of IT Act creates deeming fiction that intimation u/s 143(1) shall be deemed to be demand notice . Furthermore, demand notice Page 18 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT cannot be issued by department in absence of order raising said demand, reliance is placed on Hon ble Bombay High Court s decision in case of Rasiklal Amritlal Doshi vs. Nundy [42 ITR 35 (Bom)]; which further supports petitioner's contentions that intimation u/s 143(1)(a) for this purpose is order'. 7. Answering to Para 2 of respondent s synopsis; assessment order u/s 143(3) [Page No. 123] does not even whisper about unpaid self-assessment tax. said assessment order merely takes Rs.21,50,24,470/- as base for making additions and disallowances. demand which came to be raised through said order should only be with regard to 10 additions and disallowances made therein. Further, kind attention is drawn to Section 3(1)(a) of Taxation Laws (Continuation and Validation of Recovery Proceedings) Act, 1964 [enclosed herewith] wherein, It is clearly laid down that in any proceedings, if government dues are enhanced, taxing authority shall serve upon assessee another notice of demand only in respect of amount by which such government dues are enhanced. Further, Section 3(3) of above Act also states that this section shall have effect notwithstanding any judgement, decree or order of any court, tribunal or other authority. plain reading of this clearly lays down fact that demand notice issued pursuant to order u/s 143(3) of IT Act, 1961 should only raise demand which was enhanced by said order i.e. only demand which arose out of additions and disallowances made in order. demand notice issued pursuant to order u/s 143(3) consisting of amount of Rs.8.73 crores is illegal and nullity. Therefore, demand of Rs. 8.73 crores stood final, when no appeal was filed u/s 246 of IT Act and contention of respondent that order u/s 143(1) would merge with order u/s 143(3) would not help their case. 8. Answering to Para 4 of respondent s synopsis; Ld. Counsel for respondent has deliberately mis- stated facts before Hon ble Court by stating that attachments were provisional attachments u/s 281B of IT Act. provisional attachments can only be made by Assessing Officer', while in this case attachments were made by Tax Recovery Officer' as can be seen from records [Page Page 19 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT No. 34 & 36 of petition]. If said attachments were indeed provisional attachments as claimed, respondent has not brought on record any order provisionally attaching property passed by Assessing Officer. Neither have they filed any approval by Principal Chief Commissioner, which is mandatory condition u/s 281B before provisionally attaching property. Most importantly, section 281B(2) states that provisional attachment shall cease to have effect after expiry of period of six months from date of order. Under proviso of this section period of provisional attachment can be extended but again compliance of mandatory conditions laid down therein have not been brought on record. 9. Answering to para 5 of respondent's synopsis; judgements in cases of Rajesh Jhaveri stock broker and Zuari Estate Development will not apply as above judgements were in context of re-opening of assessment and for that purpose alone court has said that intimation u/s 143(1) of IT Act is not Assessment Order'. Order' is much wider term than Assessment Order and therefore, it cannot with any stretch of imagination be construed that Supreme Court meant that intimation u/s 143(1) is not order. In this connection, judgement of Delhi High Court in case of Epcos Electronics Components S.A. v/s UOI (2019) 107 taxmann.com 227 (Del) may kindly be referred to. 10. In pursuance to Para 6; vide case of EPCO Electronic Components SA vs. Union of India, it is clearly seen that revision can be made u/s 264 of IT Act. Revision can only be made against some order'. Therefore, intimation u/s 143(1) is order. Moreover, heading of section 246A of IT Act reads as Appealable orders before Commissioner (Appeals) . section further classifies intimation u/s 143(1) of IT Act to be order appeal against which would lie before Commissioner (Appeals). 11. In pursuance to Para 8; contention of respondent that time limit of three years has not even started would destroy principle of equity. On one hand, respondent has already attempted and failed Page 20 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT twice in auctioning off properties of petitioner in pursuance to demand raised vide order u/s 143(1) of IT Act and on other hand it Is claiming before Court that Limitation period of three years has not even commenced. When auction to recover tax dues has been Initiated pursuant to some order raising demand, under no circumstances can It be said that limitation period has not commenced. purpose of Limitation Act or in this case insertion of Rule 68B is to bring end to litigation after particular time so that sword is not kept hanging over litigant's head. contention of respondent if accepted, would defeat purpose of Rule 68B. 12. In pursuance to Para 9; section 179 is not appealable order under Chapter XX as per condition laid down in Rule 68B. Further, order u/s 179 merely shifts liability from Company i.e. M/s Shivam Water Treaters Private Limited to its Directors i.e. petitioner (Smt. Amiben Dave). In this connection, kindly refer to judgement of Hon ble P & H High Court In case of S. Basant Singh v/s TRO 233 ITR 508 (P & H). Therefore, limitation period mentioned under Rule 68B would not initiate from this order. Moreover, If contention of respondent is accepted, respondent can keep issuing order u/s 179 to beat limitation period. 13.In pursuance to Para 10; order u/s 220(2) again Is not appealable order under Chapter XX as per condition laid down in Rule 68B. Section 220 of IT Act quantify Interest, If demand is not paid within 30 days from order u/s 143(1). It is after 30 days of Issue of demand notice Interest is chargeable. Passing of order u/s 220(2) merely calculates interest payable by petitioner. This order is generally passed for convenience of assessee to intimate him about exact dues. Moreover, if contention of respondent is accepted, respondent can keep issuing order u/s.220(2) to beat limitation period in every case. Submissions on behalf of Revenue: 12. Mr. Bhatt, learned senior counsel appearing for revenue submitted that document at page-41 of paper- Page 21 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT book is only acknowledgment of return filed by Shivam Water Treaters Private Limited. No variation/prima facie adjustment were made to income returned by assessee. In that view of matter, it cannot be treated as order giving rise to demand of any tax, interest, fine, penalty or any other sum... for purposes of Rule 68B of Second Schedule to Act. Since returned income came to be accepted, there was no question of issuing any demand notice under Section 156 of Act. 13. In instant case, after Section 143(1) acknowledgment, regular assessment took place under Section 143(3) of Act. returned income has been taken as base and further additions have been made by A0. As against returned income of Rs.21,60,24,470/-, ten more additions were made and total assessed income was arrived at Rs.40,93,10,902/- and thereupon demand came to be raised. It is thereupon that demand notice and challan came to be issued. 14. scrutiny assessment under Section 143(3) came to be challenged before CIT(A). 15. In interregnum i.e. between acknowledgment under Section 143(1) and passing of scrutiny assessment under Section 143(3), to protect interest of revenue, attachment order came to be passed, which as such is nothing but attachment under Section 281B r/w Rule 48 of second schedule. 16. It is submitted that in view of decision of Supreme Court in case of Rajesh Jhaveri stock brokers (P) Ltd Page 22 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT reported in 291 ITR 500 as affirmed/followed in Zuari Estate Development & Investment Co. Ltd (373 ITR 661), acknowledgement under Section 143(1) cannot be treated to be order. 17. decision relied upon by writ applicant in case of EPCO Electronic Components SA v. Union of India [(2019) 107 Taxmann. Com 227(Delhi)] is not applicable. That was case where against intimation under Section 143(1)(a), Commissioner refused to exercise his revisionary powers under Section 264 of Act. It is in that context that Delhi High Court in paras 13 to 17 held that revision petition under Section 264 of Act would be maintainable vis-a-vis intimation under Section 143(1) of Act. In that case, petitioner s contention was that he had made mistake while filing return and had computed tax liability which it was not required to pay. This view would be fortified even on perusal of Section 246A(1)(a) of Act. Under said provisions, appeal would be maintainable to Commissioner (Appeals) against intimation under sub- section(1) of Section 143 where assessee objects to making of adjustment. Where assessee objects to liability, appeal would be maintainable treating same to be order which also is purport of revision under Section 264 of Act. As against same, in instant case, there is no objection raised by assessee against intimation and therefore, it cannot be construed to be order, for purpose of Rule 68B of 2nd Schedule to Income Tax Act. 18. In instant case, eventually, intimation under Page 23 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT Section 143(1) of Act stood merged with scrutiny assessment under Section 143(3) of Act. 19. In instant case, order under which demand is sought to be recovered had admittedly not become conclusive and therefore, in fact, three years limit itself has not started. 20. Furthermore, order dated 27.12.2017 passed under Section 179 of Act also provided for recovery of dues from writ applicants and time limit as enumerated in Rule 68B of Second Schedule has not elapsed. 21. In any view of matter, Section 220(2) demand has not become final and conclusive, for which separate order dated 16.10.2018 has been passed. 22. Strong reliance has been placed upon decision of Bombay High Court in case of Rajiv Yashwant Bhale v. CIT reported in 401 ITR 408. Reliance is also placed on decision of Kerala High Court in case of Mohammed Niyas v. CIT reported in (2018) 302 CTR 420(Kerala). 24. It is pointed out that earlier auction could not be effected as there was certain procedural issues. ANALYSIS 25. Having heard learned counsel appearing for parties and having gone through materials on record, following questions fall for consideration of this Court. (i) Whether acknowledgment or intimation under Page 24 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT Section 143(1)(a) can be treated as order giving rise to demand for purpose of applicability of Rule 68B in Second Schedule of Act? (ii) Whether intimation under Section 143(1) of Act is deemed to be notice of demand of tax under Section 156 of Act? (iii) Whether intimation under Section 143(1) (a) of Act can be equated with assessment framed under Section 143(3) of Act? (iv) Whether phrase order giving rise to demand in Rule 68B of Second Schedule in Act should be construed as final assessment order under Section 143(3) of Act? 26. Before adverting to rival submissions canvassed on either side, we must look into Rule 68B of Second Schedule to Act. Rule 68B reads as under: "Time limit for sale of attached immovable property. 68B (1) No sale of immovable property shall be made under this Part after expiry of three years from end of financial year in which order giving rise to demand of any tax, interest, fine, penalty or any other sum, for recovery of which immovable property has been attached, has become conclusive under provisions of section 245-I or, as case may be, final in terms of provisions of Chapter XX. Provided that where immovable property is required to be re-sold due to amount of highest bid being less than reserve price or under circumstances mentioned in rule 57 or rule 58 or where sale is set aside under rule 61, aforesaid period of limitation for Page 25 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT sale of immovable property shall stand extended by one year. (2) In computing period of limitation under sub-rule (1), period (i) during which levy of aforesaid tax, interest, fine, penalty or any other sum is stayed by order or injunction of any court; or (ii) during proceedings of attachment or sale of immovable property are stayed by order or injunction of any court; or (iii) commencing from date of presentation of any appeal against order passed by Tax Recovery Officer under this Schedule and ending on day appeal is decided. shall be excluded : that where immediately after exclusion of aforesaid period, period of limitation for sale of immovable property is less than 180 days, such remaining period shall be extended to 180 days and aforesaid period of limitation shall be deemed to be extended accordingly. (3) Where any immovable property has been attached under this Part before 1st day of June, 1992, and order giving rise to demand of any tax, interest, fine, penalty or any other sum, for recovery of which immovable property has been attached, has also become conclusive or final before said date, that date shall be deemed to be date on which said order has become conclusive or, as case may be, final. (4) Where sale of immovable property is not made in accordance with provisions of sub-rule (1), attachment order in relation to said property shall be deemed to have been vacated on expiry of time of limitation specified under this rule. " 27. Rule 68B of Second Schedule to I.T. Act, thus, makes it obligatory on part of revenue to complete sale of immovable property attached by it for recovery of any tax, interest, fine / penalty or any other sum within period prescribed therein. In other words, sale of Page 26 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT immovable property attached for recovery of any tax, interest, etc. cannot be held after expiry of period of limitation prescribed under Rule 68B and if sale is not completed within prescribed period therein, attachment if any levied on property is liable to be vacated. 28. Rule 68B was introduced in Second Schedule to I.T. Act by Finance Act, 1992 specifically with view to prescribe time limit of three years for sale of attached immovable properties. proviso to Rule 68B (1) provides for extension of one more year in certain cases where sale falls through. In other words, if sale held within period of three years could not be completed for some reason set out therein, then, under proviso to rule 68B(1) extension of one more year is available for effecting sale. Rule 68B(2) provides for exclusion of period during which demand is stayed by any Court. 29. period of limitation under Rule 68B(1) for sale of attached property commences from date on which demand of any tax interest, fine, penalty or any other sum for recovery of which immovable property has been attached has become conclusive under provisions of section 245 I or under provisions of Chapter XX of I.T. Act. 30. We find it extremely difficult to take view that intimation or acknowledgment under Section 143(1) of Act should be construed as order giving rise to demand Page 27 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT for purpose of applicability of Rule 68B. Under Income Tax Act, tax, as such, becomes due and payable only when assessment order is passed and liability is created followed with demand notice under Section 156 of Act. 31. In Kalyankumar Ray vs. CIT, reported in (1991) ITR 634, Supreme Court has held as under: "Assessment" is one integrated process involving not only assessment of total income but also determination of tax. ITO has to determine, by order in writing, not only total income by also net sum which will be pay able by assessee for assessment year in question and that demand notice under s. 156 has to be issued in consequence of such order. statute does not, however, require that both computations (i.e., of total income as well as of sum payable) should be done on same sheet of paper, sheet that is super scribed "assessment order". It does not prescribe any form for purpose. It will be appreciated that once assessment of total income is complete with indications of deductions, rebates, reliefs and adjustments available to assessee, calculation of net tax payable is process which is mostly arithmetical but generally time- consuming. If, therefore, ITO first draws up order assessing total income and indicating adjustments to be made, directs office to compute tax payable on that basis and then approves of it, either immediately or some time later, no fault can be found with process, though it is only when both computation sheets are signed or initialled by ITO that process described in s. 143(3) will be complete. 32. learned counsel appearing for writ applicant vehemently submitted that proviso to Section 156 of Act makes it abundantly clear that where any sum is determined to be payable by assessee under sub-section Page 28 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT (1) of Section 143, intimation in that regard is deemed to be notice of demand for purposes of Section 156 of Act. 33. At this stage, we may refer to decision of Supreme Court in case of Rajesh Jhaveri Stock Brokers Private Ltd (supra). In said case, Supreme Court observed as under: In scheme of things, as noted above, intimation under Section 143(1)(a) cannot be treated to be order of assessment. distinction is also well brought out by statutory provisions as they stood at different points of time. Under Section 143(1)(a) as it stood prior to 1-4- 1989, assessing officer had to pass assessment order if he decided to accept return, but under amended provision, requirement of passing of assessment order has been dispensed with and instead intimation is required to be sent. Various circulars sent by Central Board of Direct Taxes spell out intent of legislature i.e. to minimise departmental work to scrutinise each and every return and to concentrate on selective scrutiny of returns. These aspects were highlighted by one of us (D.K. Jain, J.) in Apogee International Ltd. v. Union of India, (1996) 220 ITR 248. It may be noted above that under first proviso to newly substituted Section 143(1), with effect from 1-6-1999, except as provided in provision itself, acknowledgment of return shall be deemed to be intimation under Section 143(1) where (a) either no sum is payable by assessee, or (b) no refund is due to him. It is significant that acknowledgment is not done by any assessing officer, but mostly by ministerial staff. Can it be said that any assessment is done by them? reply is emphatic no . intimation under Section 143(1)(a) was deemed to be notice of demand under Section 156, for apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be payable in intimation became permissible. And nothing more can be inferred from deeming provision. Therefore, there being no Page 29 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT assessment under Section 143(1)(a), question of change of opinion, as contended, does not arise. 34. dictum as laid in aforesaid decision of Supreme Court is that expressions intimation and assessment order are mutually exclusive. Assessment is used as meaning sometimes computation of income; sometimes determination of amount of tax payable and sometimes whole procedure laid down in Act for imposing liability upon tax payer . It is in this context that Supreme Court took view that intimation under Section 143(1)(a) cannot be treated to be order of assessment. 35. very same argument as canvassed by learned counsel appearing for writ applicant before this Court was canvassed before Delhi High Court in case of Apogi International Limited vs. Union of India, Income Tax Officer, reported in 1996 (220) ITR 248. Apogi International Limited (Supra) has also been referred to in Rajesh Jhaveri (supra). Justice D.K. Jain (as his Lordship then was), speaking for Bench, observed as under: We are also not impressed with submission that intimation has to be treated as conclusion of assessment process merely because intimation under s. 143(1)(a)(i) is by itself deemed to be notice of demand issued under s. 156 of Act, after completion of assessment proceedings for particular assessment year. From scheme of new assessment procedure it is obvious that purpose for which said fiction has been created in sub-s. (1)(a)(i) of s. 143 to treat intimation as notice of demand under s. 156 is to make machinery provision of recovery of tax applicable to recovery of tax assessed in terms of said sub- section and nothing more. By fiction so created, all Page 30 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT incidents of notice of demand shall become applicable even to that intimation even though no regular recovery notice of demand in prescribed form under s. 156 is served on assessee, which otherwise is mandatory to enforce any recovery of tax or interest on assessee. 36. We are of view that phrase order giving rise to demand in Rule 68B should be construed as final assessment order, determining tax liability of assessee with interest, fine, penalty or any other sum. With commencement of proceedings under Section 143(2) of Act, intimation under Section 143(1)(a) of Act, which in absence of proceedings under Section 143(2) read with Section 143(3) would have taken shape of regular assessment. But once proceedings commenced under Section 143(3), intimation under Section 143(1)(a) remains intimation only of self-assessment with prima facie adjustments, if any, made by Assessing Officer and becomes adjustable as per regular assessment. initial intimation under Section 143(1) of Act, which according to learned counsel appearing for assessee, should be understood as order giving rise to demand for purpose of Rule 68B merges into regular assessment and once proceedings for regular assessment under Section 143(3) is commenced, there cannot be any recourse to bring into existence any order under Section 143(1)(a) of Act. (See Commissioner of Income Tax vs. Udaipur Distillery Company Ltd., reported in 2004 (267) ITR 358) 37. We may refer to decision of Madhya Pradesh High Court in case of Kamal Textiles vs. Income-Tax Officer, reported in 1991 (189) ITR 339, wherein it has been held as Page 31 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT under: reading of Clause (i) to Sub-section (l)(a) of Section 143 makes it clear to us that giving of intimation in terms of that provision is "without prejudice" to provisions of Sub-section (2). This expression/phrase is normally used in negotiation of compromise or offers to settle differences cause pacis in order to guard against any waiver of right should they be ineffectual and go off. Thus, where parties in court agreed that cause should "stand adjourned and without prejudice to either of parties" it would only mean that no harm should result to rights to either of parties by reason of his consent to adjournment at that time. Thus understood, in present context, expression shall mean only that intimation sent to assessee specifying sum payable by him in terms of that sub- section, although technically demand issued under Section 156, shall nevertheless not preclude operation of provisions of Sub-section (2). By force of this expression as inserted in Sub-section (1)(a)(i), right of assessing authority to proceed under Subsection (2) of Section 143 despite intimation to assessee of sum payable by him as tax or interest is not taken away. That right is clearly saved and is not in any way curtailed or hampered by giving of intimation. It may be noticed that section has been recast and one of main changes brought about is that, under Section 143(1), regular assessment order as such is not to be passed. Power to make adjustment in terms of its proviso can be invoked only when claim is prima facie inadmissible, that is, it should be clear or self-evident. decision on debatable issue is not envisaged. On contrary, when proceedings are taken under Section 143(2), it partakes of nature of regular assessment and assessing authority should pass order under Section 143(3). Shri Nema also urged that because intimation is deemed to be notice of demand of tax under Section 156 of Act, proceedings for assessment should be taken as complete in all respects, subject of course to assessment being reopened in terms of Section 147. This contention also is devoid of any substance. intimation under Section 143(1)(a)(i) is only fictionally taken as notice of demand under Section 156. Like all Page 32 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT other fictions, to understand meaning of this fiction so created here, one must look to its purpose. It is only thereafter that court has to assume all facts and consequences which are incidental or inevitable corollary to giving effect to fiction. One must be cautious to see that fiction is not extended beyond purpose for which it is created. See CIT v. Vadilal Lallubhai [ 1972] 86 ITR 2 (SC). apparent purpose of fiction so created here to treat intimation as notice of demand under Section 156 is to make machinery provision of recovery of tax applicable to recovery of tax assessed in terms of Section 143(1)(a)(i) and nothing more. notice of demand under Section 156 is to be served in prescribed form. intimation under Section 143(1)(a)(i) is not in any such prescribed form. Nevertheless, by fiction so created, all incidents of notice of demand shall become applicable even to that intimation, for any statutory fiction must be carried to its logical conclusion. Such being limited purpose of fiction, it is difficult to accept contention that, on issuance of such intimation, assessment proceedings can be reopened only in terms of Section 147 and authority is not entitled to proceed under Sub-section (2) of Section 143. We are also not impressed with argument of learned counsel that issuance of intimation under Sub-section (1)(a)(i) of Section 143 is final because no appeal is provided against demand of amount of income- tax or interest. This contention overlooks fact that even if not appealable, it is clearly revisable. However, as we have noticed above, assessment made in proceedings under Section 143(2) shall, for all purposes, be assessment of tax made under Section 143(3) and, in that event, shall be appealable under Section 246(1) (a) of Act. 38. We may also refer to decision of this High Court in case of CIT vs. Himgiri Foods Ltd., reported in 2011 (333) ITR 508, wherein it has been held as under: On plain reading of Section 143(1B) it is apparent that provision mandates that if after issuance of intimation, revised return is furnished by assessee under Sub-section (5) of Section 139, it is incumbent Page 33 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT upon assessing officer to process revised return and amend intimation issued under Section 143(1)(a) on basis of revised return. At this stage, there is no question of going into validity of return filed under Section 139(5) of Act, If revised return is filed within prescribed period of limitation. intimation under Section 143(1)(a) of Act cannot be equated with assessment framed under Section 143(3) of Act and assessing officer cannot refuse to process revised return and modify intimation in accordance with Section 143 (1B) of Act. 39. Thus, in view of aforesaid, we hold that phrase order giving rise to demand in Rule 68B to Second Schedule of Act should be read as assessment order under Section 143(3) of Act and not merely acknowledgment or intimation under Section 143(1) of Act. 40. Having taken aforesaid view, period of limitation will have to be counted accordingly. It is not in dispute that against final order of assessment under Section 143(3) of Act, appeal was preferred by writ applicant before Commissioner (Appeals), which came to be dismissed and, as on date, appeal is pending before Income Tax Appellate Tribunal. In such circumstances, it cannot be said that order became conclusive. period of limitation would reckon only from date, order becomes conclusive. word conclusive has been explained by Bombay High Court in case of Rajiv Yashwant Bhale vs. Principal Commissioner of Income-tax & Ors., reported in (2008) 401 ITR 408 (Bom). In para-76, it has been observed as under: In any event, word "conclusive" itself has to be Page 34 of 35 Downloaded on : Sat Aug 24 09:51:33 IST 2019 C/SCA/284/2019 JUDGMENT understood in context. It means "bring or come to end". In Advanced Law Lexicon, 3rd Edition Reprint 2007, this word is understood as final, finishing, ending. word "conclusive" means closing, settling or finally arranging of treaty, contract, deed etc. It is in that sense word has been understood and must be, therefore, given that meaning. 41. For foregoing reasons, both writ applications fail and are hereby rejected. (J. B. PARDIWALA, J) (A. C. RAO, J) Vahid Page 35 of 35 Gauravbhai Hargovindhai Dave v. Tax Recovery Officer 4