Vildirect: IncomeTax-caselaws-2003-VIL-189-ITAT-ALH

2003-VIL-189-ITAT-ALH

Equivalent Citation: [2004] 3 SOT 250 (ALL.)

Income Tax Appellate Tribunal ALLAHABAD

IT APPEAL NO. 240 (ALL.) OF 2002

Date: 29.08.2003

SHUBHAM ENTERPRISES

INCOME-TAX OFFICER

BENCH

P.S. KALSIAN AND BHAVNESH SAINI, JJ.

JUDGMENT

Per Bhavnesh Saini, J.M. - This appeal by the assessee is directed against the order of the CIT(A), Varanasi dated 23-5-2002 for the assessment year 1998-99. This appeal was taken up for out of turn hearing vide our order dated 12-9-2002 in Stay Petition No. 16(All.)/2002. This appeal by the assessee was filed on as many as 11 grounds of appeal. However, the ld. D.R. objected to the ground No. 11 raised in the grounds of appeal which was additional ground in nature. For the sake of convenience, the same is reproduced as under :

"11. Because the mandatory requirement of service of notice under section 143(2) within a period of one year from the date of filing the return, have not been complied with, the assessment order dated 1-12-2000 is liable to be declared as null and void."

2. The arguments from both sides were heard with regard to admission of ground No. 11. We have also directed the ld. D.R. to produce the assessment records. During the course of hearing, the ld. D.R. produced the assessment record, which was perused by us. We found that the order sheet dated 22-9-1999 was not signed by the Assessing Officer and the next order sheet dated 8-6-2002 was also not signed by the Assessing Officer. We also found from assessment record that even copy of the notice under section 143(2) dated 22-9-1999 was also not available. The assessment record was returned to the ld. D.R. and the ld. D.R. was directed to clarify the above position on the date of hearing adjourned to 24-4-2003. On 24-4-2003, the ld. D.R. filed the Written Submissions but did not comply with our directions issued on 2-4-2003. After hearing both the parties at length, we have rejected the objections of the ld. D.R. and ground No. 11 (additional ground) mentioned above was accordingly admitted for hearing vide our order dated 5-5-2003. The appeal was adjourned for hearing for 23-5-2003 on this ground being stay granted matter. Accordingly, the appeal was refixed for hearing.

3. We have heard Sri S.K. Garg, Advocate for the assessee and Sri Shambhoo Chopra, Standing Counsel for the Income-tax Department on the preliminary issue i.e., ground No. 11 referred to above. Both the Counsels have suggested that they may be heard on this preliminary issue first before proceeding to decide the remaining grounds of appeal.

4. The ld. Counsel for the assessee argued that the assessee is a partnership firm and copy of the partnership deed was filed before the authorities below but the supplementary partnership deed could be filed before the CIT(A). However, the assessee was assessed as AOP and the main additions were made by way of disallowance of salary to partners and interest paid to partners. The ld. Counsel for the assessee further argued that the assessee has filed return of income on 31-10-1998 but no show-cause notice under section 143(2) of the Income-tax Act, 1961 was issued or served upon the assessee within the period of twelve months from the end of the month in which the return was furnished. The ld. Counsel for the assessee argued that the notice under section 143(2) can be served upon the assessee within one year after the amendment of the Income-tax Act with effect from 1st April, 1989 and since no valid notice was served upon the assessee within a period of 12 months from the end of the month in which the return was furnished, therefore, the assessment order is bad in law and liable to be declared null and void. The ld. Counsel for the assessee further argued that issue of notice by itself is not sufficient but it should be served upon the assessee within the period of limitation as provided in the proviso to section 143(2) of the Income-tax Act. The ld. Counsel for the assessee relied on the judgment of Hon’ble Allahabad High Court in the matter of Rajmani Devi v. CIT [1937] 5 ITR 631 . The ld. Counsel for the assessee also relied upon the order of the I.T.A.T., Mumbai Bench ‘E’ in the matter of Uma Polymers (P.) Ltd. v. Asstt. CIT [2002] 123 Taxman 226 (Mag.), order of ITAT, Allahabad A-Bench in the matter of Smt. Saraswati Devi v. ITO [IT Appeal No. 975 (All.) of 1996, dated 11-11-1997] and the order of ITAT, Delhi Bench in the case of Bhagat Singh and Virendra Singh v. Asstt. CIT [2001] 251 ITR 74 (AT).

5. On the other hand, the ld. Standing Counsel for the Income-tax Department, Shri Shambhoo Chopra argued that the Income-tax Act does not contemplate such situation if notice under section 143(2) is not served. He has further argued that penal consequences are provided in proviso to section 143(2) of the Income-tax Act, 1961. He has further argued that even if no notice is served, the assessment order will not be nullity or non est. He has further argued that it may be an irregularity which is curable. He has further argued that section 153(2A) and section 275 of the I.T. Act show that in particular situation, no assessment order or penalty order could be passed but nothing is provided in section 143(2) that no assessment order may be passed. He has further argued that the provisions contained under section 143(2) are directory in nature and are not mandatory. He has relied upon the judgment of Hon’ble Supreme Court in State of U.P. v. Harendra Arora [2001] 6 SCC 392, Topline Shoes Ltd. v. Corporation Bank [2002] 6 SCC 33, T.V. Usman v. Food Inspector [1994] 1 SCC 754, P.V. Doshi v. CIT [1978] 113 ITR 22 (Guj.), Seth Badridas Daga v. CIT [1949] 17 ITR 209 (PC) and CIT v. Khemchand Ramdas [1938] 6 ITR 414 (PC). Mr. Chopra further argued that in this case the Assessing Officer issued notice under section 143(2) dated 22-9-1999 as per assessment order. He has filed copy of the Order Sheet entry from 22-9-1999 to 6-11-2000. He has further argued that even if Order Sheet dated 22-9-1999 is not signed by the Assessing Officer, it would not vitiate the assessment order. He relied upon the decision of the Hon’ble Gujarat High Court in the case of CWT v. Dhansukhlal J. Gajjar [1999] 237 ITR 534 . He has further argued that there is no reason why the assessment order should not be believed. He has further argued that whole of the facts and circumstances should be considered. He has further argued that the assessee cannot challenge the order sheet entries as it was internal matter of the Assessing Officer. Mr. Chopra also referred to 1995 (1) All England Reports, 367. Mr. Chopra has filed copies of judgments reported in Supreme Court Cases but did not file copy of All England Report.

6. We have bestowed our careful consideration. We have gone through the material available on record very carefully. The whole case is depending upon provisions contained in section 143(2) of the Income-tax Act and whether any valid notice under section 143(2) was issued and served upon the assessee. Chapter XIV of the Income-tax Act provides the procedure for assessment. Section 143 of the Act provides for assessment. Section 143(1) provides for sending of intimation and demand on the basis of details furnished by the assessee. Section 143(2) provides for issue and service of the notice upon the assessee requiring him to attend the office of the Assessing Officer or to produce or cause to be produced there, any evidence on which the assessee may rely in support of the return. Proviso to section 143(2) provides the period of 12 months in which notice could be served upon the assessee from the end of the month in which the return is furnished. Section 143(3) provides the procedure for regular assessment on issue of notice under section 143(2) of the Income-tax Act. For the sake of convenience, section 143(2) and (3) are reproduced below:

"143(2). Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return:

Provided that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished.

(3) On the day specified in the notice issued under sub-section (2), or as soon after wards as may be, after hearing such evidence as the assessee may produce and such other evidence as the Assessing Officer may require on specified points, and after taking into account all relevant material which he has gathered, the Assessing Officer shall, by an order in writing, make an assessment of the total income or loss of the assessee, and determine the sum payable by him or refund of any amount due to him on the basis of such assessment."

7. We find that proviso to section 143(2) was inserted by Direct Tax Laws (Second Amendment) Act, 1989 with effect from 1-4-1989 which was further substituted by Finance (No. 2) Act, 1991, with effect from 1-10-1991 by which period of twelve months was provided for service of the notice upon assessee from the end of the month in which the return is furnished. The plain reading of section 143(2) and (3) of the I.T. Act provides that regular assessment could be made under section 143(3) of the Act by issuing notice under sub-section (2) of section 143. Section 143(2) provides that where a return has been filed under section 139, or in response to notice under section 142(1), the Assessing Officer shall, if considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under paid the tax in any manner, serve on the assessee a notice requiring him to produce any evidence on which the assessee may rely in support of the return. The proviso to section 143(2), however, provides that no notice under this section shall be served on the assessee on after expiry of 12 months from the end of the month in which the return is furnished. The Assessment year involved in the present appeal is 1998-99. Therefore, the proviso to section 143(2) of the Act is applicable to this case. The entire super-structure of an assessment order is dependent on the validity of notice. Whenever an assessment is sought to be made under section 143(3), issuing and serving of valid notice under section 143(2) is a pre- condition and is mandatory. The words "shall serve on the assessee a notice requiring him" occurring in section 143(2) of the Income-tax Act imply a duty to be performed and the word "shall" connotes that the provisions are mandatory. Non-compliance with the provisions goes to vitiate the order of assessment itself. The proviso specifically provides that not only the valid notice under section 143(2) is to be issued within the period of 12 months from the end of the month in which return is furnished but it shall be served upon the assessee. Section 143(2) gives jurisdiction to the Assessing Officer to proceed with the assessment under section 143(3) of the Income-tax Act. The ld. Counsel relied on the judgment of the Hon’ble Allahabad High Court in the case of Rajmani Devi (supra) in which reference under section 66(3) of the Indian Income-tax Act, 1922 was made on the following question :

"2. Is the issue of valid notice under section 23(2) a condition under the circumstances of the present case to the making of an assessment under section 23(4)?"

Hon’ble Allahabad High Court giving answer to this question held that the issue of such a valid notice was imperative and ultimately held that the notice under section 23(2) was an illegal notice. The ld. Counsel also relied upon the order of the I.T.A.T., Mumbai Bench in the matter of Uma Polymers (P.) Ltd. (supra) in which Mumbai Bench of I.T.A.T. held that no assessment under section 143(3) can be framed without a valid notice issued under section 143(2) of the Act. It was also held that the provisions of section 292B is to save the validity of the notice merely by reason of any mistake, defect or omission therein and would not apply to the cases where notice itself is never issued. It was also held that the notice under section 143(2) is not merely procedural in nature but is a mandatory provision and since no notice was issued under section 143(2) of the Act, therefore, assessment was held to be invalid.

8. The I.T.A.T., Allahabad Bench in the matter of Smt. Saraswati Devi (supra), considered the facts of the case in which the assessment was framed without service of valid notice under section 143(2) within the period of 12 months from the end of the month in which return was furnished. Therefore, the CIT proceeded under section 263 of the Income-tax Act, 1961 and cancelled the assessment and directed the Assessing Officer to re-do the assessment in accordance with law. The validity of order under section 263 was challenged before the I.T.A.T., Allahabad Bench in which the Tribunal held that proviso to section 143(2) was introduced after the amendment with effect from 1-10-1991 which provided that the said notice cannot be served on the assessee after expiry of 12 months from the end of the month in which the return is furnished. It was also held that in that case, the right of the Assessing Officer to issue notice under section 143(2) had extinguished in law much before it was issued by him. Therefore, the matter could not be remanded to the Assessing Officer to re-do the assessment. Accordingly the impugned orders were quashed by the Tribunal.

9. The I.T.A.T. Delhi Bench in the matter of Bhagat Singh and Virendra Singh (supra) held that notice under section 143(2) of the Act could only be issued on the basis of the return for making the assessment under section 143(3) and not beyond that. It was also held that as this was not done, no valid assessment can be made on the basis of notice issued beyond the period of limitation prescribed in the proviso to section 143(2) of the I.T. Act. The assessment was accordingly held not valid.

10. However, Mr. Shambhoo Chopra, learned Standing Counsel for the Income-tax Department relied upon the judgment of the Hon’ble Supreme Court in the matter of Harendra Arora (supra) in which U.P. State Public Services Tribunal quashed the order of dismissal on the ground that copy of the enquiry report as required under Rule 55-A of the Civil Services Rules, 1930 was not furnished to the Respondent. The State contended that in the absence of anything to show that the Respondent was prejudiced by the non-filing of the enquiry report, the omission would not warrant the setting aside of the dismissal order. It was held that non-furnishing of enquiry report would not be fatal to the order of punishment unless prejudice is shown.

11. In the matter of T.V. Usman (supra), Hon’ble Supreme Court considered Rule 7(3) of Prevention of Food Adulteration Rules, 1955. The delay in sending the report of analysis to the Local (Health) Authority by itself would not render the report void or inadmissible in nature. Those Rules were held to be directory and not mandatory as the accused was, in no way, was prejudiced on merits.

12. The Hon’ble Supreme Court in the matter of Topline Shoes Ltd. (supra) while considering the provisions of Consumer Protection Act was of the view that the time limit comprising the initial period and the extended period prescribed in, for the filing of version of opposite party, was held to be directory and not mandatory.

13. Mr. Chopra also referred to the extract taken from page 114 of Bhavnagar University v. Palitana Sugar Mills (P.) Ltd. [2003] 2 SCC 111¹ in which on interpretation of Statute it was stated that "When statute requires a public functionary to do a thing within a specified time and also provides consequences for inaction, it must be held to be mandatory."

14. The ld. Standing Counsel for the department relied upon the judgment of Hon’ble Gujarat High Court in the matter of P.V. Doshi (supra) in which it was held that the jurisdictional provision which was mandatory and enacted in public interest could never be waived and the want of jurisdiction was discovered by the Appellate Assistant Commissioner, there was no question of waiver by the assessee. No question of finality of the remand order of the Tribunal could arise because the mandatory conditions for founding jurisdiction for initiating re-assessment proceedings had not been fulfilled. The re-assessment order was accordingly not found valid. This authority is of no help to the Revenue, rather would strengthen the case of the assessee.

15. We have also gone through other case laws referred to by the ld. Standing Counsel. After considering the ratio of the cases referred to by the ld. Standing Counsel, we are of the view that none of these case laws referred to by him are applicable to the facts and circumstances of this case, Rather the interpretation of mandatory and directory as suggested by the ld. Standing Counsel would be applicable to this case as according to Mr. Chopra when Statute requires a public functionary to do a thing within a specified time and also provides consequences for inaction, it must be held to be mandatory. The proviso to section 143(2) of the Act provides that no notice under this Act shall be served upon the assessee after expiry of 12 months from the end of the month in which the return is furnished. If no notice is served within such period as prescribed under the Income-tax Act, then no assessment can be made against the assessee under section 143(3) of the Act. Therefore, the Income-tax Act, 1961 requires the Assessing Officer to issue and serve the notice under section 143(2) within a period of 12 months from the end of the month in which the return is furnished otherwise its consequences are provided for inaction i.e., that no valid assessment order under section 143(3) could be passed.

16. Considering the above discussion, provisions of law and authorities referred to above, we are of the view that the proviso to section 143(2) is mandatory in nature and cannot be cured subsequently. The contention of the ld. Standing Counsel is devoid of merit that the Act does not contemplate such situation. If no notice under section 143(2) is served within the period of limitation, then assessment would be invalid. Even though no penal provision is provided in section 143, but the assessment would be invalid if no notice is served under section 143(2) of the I.T. Act. Once no notice is issued, then the same could not be cured. What is provided for under section 292B of the Income-tax Act is that no return of income, assessment, notice, summons or other proceeding shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice summons or other proceeding if such return of income, assessment, notice etc. is in substance and effect in conformity with or according to the intent and purpose of this Act. However, if no notice is issued, then there could not be any mistake or defect. The intention of the Legislature providing proviso to section 143(2) was that no notice under that sub-section would be served on the assessee after expiry of 12 months from the end of the month in which return is furnished. The intent and purpose of the Income-tax Act is defeated if the notice is served after the period of limitation as provided in the proviso to section 143(2) of the Act. Therefore, the contention of the ld. Standing Counsel is rejected. The contention of the ld. Standing Counsel is also liable to be rejected comparing the other provisions of law giving other situations and providing limitation as the same are not connected with the process or assessment as provided under section 143(2) of the Act. The contention of the ld. Standing Counsel was that the proviso to section 143(2) is not substantive law is also liable to be rejected as the same is specifically provided with the main provisions of law.

17. Considering the above discussion and the case laws referred to above we are of the view that the proviso to section 143(2) is mandatory in nature and no notice could be served upon the assessee after the expiry of 12 months from the end of the month in which the return is furnished. The entire assessment order would be nullity and is liable to be quashed is such notice is not served within the period of limitation.

18. However, the question remains as to whether in the present case, the Assessing Officer has issued and served the valid notice under section 143(2) dated 22-9-1999 upon the assessee. It is worth to mention here that when the arguments on admission of additional ground mentioned above were heard, we have directed the ld. D.R. to produce the assessment record. On 2-4-2003, the ld. D.R. appearing for the Revenue-department produced the assessment records which we have perused and arguments of the parties were also heard. After going through the assessment record, we find that the order sheet dated 22-9-1999 was not signed by the Assessing Officer and the next Order sheet dated 8-6-2000 was also not signed by the Assessing Officer. The assessment record was also not having even copy of the notice under section 143(2) dated 22-9-1999.The assessment record was returned to the Ld. D.R. and it was directed to clarify the above position on the next date of hearing and the case was adjourned to 24-4-2003. On 24-4-2003, the ld. D.R. filed the written submissions but did not comply with our directions issued on 2-4-2003. The ld. D.R. in paragraph 29 of the Written Submissions submitted "It is clarified that these written submissions have not gone into the question of fact whether the case records for the year, as are presently available in the office of the Assessing Officer contained anything to show whether a notice under section 143(2) of the Income-tax Act, 1961 was issued and served within the time referred to in the proviso to section 143(2) of the Income-tax Act, 1961 or not. This has not been done in view of the various reasons."

The ld. D.R. has given certain reasons for not complying with the directions which are not relevant to be reproduced here. However, it is necessary to mention the fourth reason - "Fourthly the assessment order passed in this case is a part of the record and that says that a notice under section 143(2) was issued within the period of time referred to in the proviso to section 143(2)." We find mention in the assessment order that notice under section 143(2) of the Act dated 22-9-1999 was issued by the predecessor of the Assessing Officer. However, none attended from the assessee’s side. The requirement of proviso to section 143(2) shows that not only the notice under section 143(2) should be issued before 12 months from the end of the financial year in which return is furnished but shall also be served upon the assessee. The additional ground raised above related to the important point of jurisdiction and we do not find copy of the notice in the assessment record. The Assessing Officer has nowhere mentioned in the assessment order that notice under section 143(2) was served within the time upon the assessee. We have rejected the objection of the ld. D.R. and allowed the additional ground for the purpose of disposal of the appeal vide our order dated 5-5-2003 and we refixed the appeal for final hearing on this ground on merit. The ld. D.R. was again directed to produce the assessment record at the time of hearing on 2-7-2003. We have further directed the ld. D.R. to produce the assessment record and to clarify the point with regard to issue of notice under section 143(2) of the Income-tax Act. The ld. D.R. was also directed to file the written reply on this issue on the next date of hearing. The matter was adjourned to 8th July, 2003 and the ld. D.R. filed the Written Submissions bearing dated 7th July, 2003 in which it was precisely mentioned that the notice dated 22-9-1999 was issued under section 143(2) of the Income-tax Act and the assessment order, which is an order made under the law and which also constitutes a part of the case record of the assessee, says in clear and unambiguous term that a notice dated 22-9-1999 was issued by the Assessing Officer. Therefore, it is clear reply of the ld. D.R. that whatever is mentioned in the assessment order could be considered by the Tribunal. No specific reply is filed as to why the Order Sheets dated 22-9-1999 and 8-6-2000 were not signed by the Assessing Officer. No specific reply is filed as to why copy of the notice under section 143(2) dated 22-9-1999 is not available in the assessment record. The matter was adjourned to 1st August, 2003 and on that date Sri Shambhoo Chopra, ld. Standing Counsel for the Income-tax Department appeared and arguments were finally heard on 5-8-2003. The ld. Standing Counsel filed copy of the Order Sheet entries dated 22-9-1999 and 8th June, 2000 by which the notices under sections 143(2) and 142(1) were stated to have been issued. The ld. Standing Counsel during the course of arguments, stated that even if these Order sheets are not signed by the Assessing Officer, it would not vitiate the assessment order. Therefore, it is admitted fact that the Order sheets dated 22-9-1999 and 8-6-2000 were not signed by the Assessing Officer. The ld. Standing Counsel also could not point out as to why the copy of the notice dated 22-9-1999 is not available in the file. The return of income was filed on 31-10-1998 and as such the notice under section 143(2) could have been issued and served upon the assessee upto 31-10-1999 for making assessment under section 143(3) of the Act. Mr. Chopra relied upon the judgment of the Hon’ble Gujarat High Court in the case of Dhansukhlal J. Gajjar (supra). We are afraid how this decision would be of any help to the contention of the ld. Standing Counsel with regard to non-signature of the Assessing Officer on the Order Sheet. In this case, wealth-tax references were sent to the Hon’ble High Court on certain questions and one of the question No. 3 is relevant to be reproduced:

"3. Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in coming to the conclusion that the assessment was not completed within the statutory time limit prescribed under section 17A of the Wealth-tax Act, 1957, notwithstanding the fact that the assessment order was made on March 28, 1979, and tax computation sheets (assessments/refund forms ITNS 150) were made on March 30, 1979."

It was held by the Tribunal that there was no determination of tax payable as shown in the forms on March 30, 1979, and hence the time limit for making the assessments expired on March 31, 1979, and further that as determination of the wealth-tax payable took place on April 17, 1979, when the demand notice was signed by the Wealth-tax Officer. It is also mentioned that the Tribunal inspected the assessment record and found that these computation sheets/assessment/refund forms were not signed by the Assessing Officer. Therefore, the Tribunal was of the view that the assessment was not completed within the statutory time limit. The view of the Tribunal was affirmed by the Hon’ble Gujarat High Court and both the references were disposed of accordingly against the Revenue and in favour of the assessee.

19. The stand of the Revenue is that the observations contained in the assessment order be believed. We do not subscribe to this view. The Assessing Officer, who passed the assessment order, did not issue notice under section 143(2) of the Act dated 22-9-1999. He has also not issued notice under section 142(1) dated 8-6-2000. According to the observations of the Assessing Officer, his predecessor issued these notices. However, no copy of such notices are available in the assessment record. The issue of valid notice under section 143(2) gives jurisdiction to the Assessing Officer to frame assessment under section 143(3) of the I.T. Act. No notice could be issued without the specific order of the Assessing Officer. The order sheet dated 22-9-1999 is not signed by the concerned Assessing Officer. Therefore the averments mentioned by other officer (Assessing Officer) in the assessment order cannot be believed as the same are not supported by any material on record. No reasons are explained before us as to why the Order sheets were not signed by the concerned Assessing Officer and why the copies of statutory notices are not available in the file. These are the crucial dates on which the valid notice could have been issued and served within the period of limitation as provided in the proviso to section 143(2) of the I.T. Act. We further find from the assessment order that the Assessing Officer nowhere mentioned that the notice under section 143(2) dated 22-9-1999 was ever served upon the assessee. In absence of any finding to this effect in the assessment order, the very foundation of the assessment order would go. It is the requirement of the law that not only valid notice under section 143(2) should be issued to the assessee before the period of limitation but it should also be served upon the assessee. No evidence or material is brought on record by the Revenue-department to show if any valid notice is issued or served upon the assessee within the period of limitation as provided under the proviso to section 143(2) of the Income-tax Act. The case law referred to by the Standing Counsel in the matter of Dhansukhlal J. Gajjar (supra) would rather support the contention of the assessee.

20. Considering the above discussion and the material available on record, we are of the opinion that the Revenue-department has failed to prove that valid notice dated 22-9-1999 under section 143(2) was issued and served upon the assessee within the period of 12months from the end of the month in which the return was furnished. We accordingly hold that the assessment order dated 1-12-2000 to be null and void. Accordingly, we quash the impugned order dated 23-5-2002 of the CIT(A) and assessment order dated 1-12-2000. Resultantly the entire additions are deleted.

21. Since we have quashed the assessment order and the impugned order, therefore, there is no need to take up other grounds of appeal on merits.

22. As a result, the appeal of the assessee is allowed.

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