JUDGMENT R.K. Agrawal, J.
1. The Income-tax Appellate Tribunal has referred the following question of law under Section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for the opinion of this court :
"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that it would not be correct to interpret the word 'forward' in the same manner as the words 'issue' or 'serve' and, therefore, the assessment order dated August 24, 1977, was within the period of limitation ?"
2. The said question of law, arises out of the order dated March 31, 1981, of the Income-tax Appellate Tribunal, passed in Income-tax Appeal No. 780 (Alld.) of 1980 relating to the assessment year 1972-73.
3. The facts of the case in brief are that the assessee-applicant is a firm. The limitation for completing the assessment of the assessment year 1972-73, in the normal course, expired on March 31, 1975, in accordance with the provisions of Section 153 of the Income-tax Act, 1961. The Assessing" Officer completed the assessment under Section 144 of the Act on January 18, 1975. This assessment was, however, reopened on March 31, 1975, under Section 146 of the Act. A fresh assessment therefore, should have been completed in the normal course in accordance with the limitation prescribed by Sub-section (2A) of Section 153 of the Act on or before March 31, 1977. However, as the addition in the case of the assessee was of more than Rs. 1 lakh, the Income-tax Officer framed a draft assessment order in terms of Section 144B of the Act and forwarded the said draft assessment to the applicant along with the forwarding letter dated February 28, 1977. The said letter, was, however, registered at the post office on March 10, 1977, and was served on the applicant on March 28, 1977. The applicant filed objections to the draft assessment order on April 4, 1977. The Inspecting Assistant Commissioner issued directions under Section 144B of the Act to the Income-tax Officer on July 29, 1977, which were received by him on the same date. The Income-tax Officer passed the final assessment order on August 24, 1977. The applicant filed an appeal against the said order before the Commissioner of Income-tax (Appeals) and contended that the draft assessment order having been served on it on March 28, 1977, the Income-tax Officer could not have completed the assessment on the date beyond August 1, 1977. The reasoning given by the applicant was that the draft order having been served on it only three days prior to the normal period of limitation, the Income-tax Officer had only that much time to complete the assessment after receipt of the directions under Section 144B of the Act from the Inspecting Assistant Commissioner. It was urged before the Commissioner of Income-tax (Appeals) that even if the date on which the draft assessment order was posted to the applicant, i. e., March 10, 1977, was taken as a crucial date which gave the Income-tax Officer a period of 21 days, the assessment could not have been completed beyond August 19, 1977. The Commissioner of Income-tax (Appeals) rejected the contentions of the applicant. He relied on Clause (iv) of Explanation 1 to Section 153 which stipulated that in computing the period of limitation the period (not exceeding 180 days) commencing from the date on which the Income-tax Officer forwards the draft order to the applicant and ending on the date on which the Income-tax Officer receives the directions from the Inspecting Assistant Commissioner is to be excluded. He held that the word "forward" used in this section has an altogether different connotation from the words "issue" and "serve" and so in the present case February 28, 1977, should be taken as the date on which the assessment order had been forwarded to the applicant for the purpose of computing the limitation. In other words, he agreed with the Income-tax Officer that the period of limitation was 31 days from the date of receipt of the directions from the Inspecting Assistant Commissioner since the period between February 28, 1977 and March 31, 1977, was 31 days.
4. The applicant challenged the order of the Commissioner of Income-tax (Appeals) before the Income-tax Appellate Tribunal. It urged before the Tribunal that in view of the decisions of the Supreme Court in the case of Banarsi Debi v. ITO [1964] 53 ITR 100, and the decision of the Allahabad High Court in the case of Kundan Lal Behari Lal v. CWT [1975] 98 ITR 359, the terms "issued and served" were interchangeable and that in the legislative practice they were sometimes used to convey the same idea. According to the applicant, the word "forward" had the same meaning as the word "issue" and, therefore the word "forward" should also be equated with the word "served". According to the applicant, if any other interpretation was given then it would mean that the Income-tax Officer could just sign an order and keep it with him for any length of time and thereby extend the period of limitation arbitrarily. According to the applicant, unless the applicant received the draft order, it could not be said that the order was forwarded to him because until the order was served on it, it would have no legal consequence.
5. The Tribunal did not agree with the contentions of the applicant that the word "forward" should be equated with the word "issued" and "served". According to the Tribunal, the word "forward" has been used by the Legislature in contradistinction to the words "issued" and "served". Relying on the dictionary meaning of the word "forward", the Tribunal held that the said word denotes a stage when a document is ready for despatch. It concluded that when the Income-tax Officer prepares a draft order and signs the "forwarding letter" the draft assessment order is forwarded on the date when the Income-tax Officer signs the said letter. The Tribunal further held that it cannot be said that the process of forwarding is the same as service. It was of the view that when the Income-tax Officer signs the covering letter to which the draft assessment order is enclosed he sets in motion the process of service of the order, etc., on the assessee. The Tribunal, therefore, did not accept the contentions of the applicant and upheld the order of the Commissioner of Income-tax (Appeals).
6. We have heard Shri Vikram Gulati, learned counsel for the applicant, and Shri A. N. Mahajan, learned counsel appearing for the Department.
7. Shri Vikram Gulati, learned counsel for the assessee, submitted that the assessment order passed on August 24, 1977, was clearly barred by limitation. According to him, the date on which the assessee received the draft assessment order, i.e., March 28, 1977, is the date on which the Income-tax Officer has forwarded the letter and, therefore, only three days' time was available to the Income-tax Officer for completing the assessment, after he received the directions from the Inspecting Assistant Commissioner on July 29, 1977. According to him, the word "forward" is to be equated with the words "issue" and "serve" as unless the draft assessment order is served on the assessee it cannot be said that the order has been forwarded. The date of forwarding and the date of service, according to him, is the same. He relied upon the decision of the Supreme Court in the case of Banarsi Debt v. ITO [1964] 53 ITR 100, and the decision of this court in the case of Kundan Lal Behari Lal v. CWT [1975] 98 ITR 359 in support of his above submission. In the alternative, he submitted that even if the date on which the draft assessment order along with the forwarding letter was handed over to the postal authority, i.e., on March 10, 1977, is taken to be the date when the Income-tax Officer has forwarded the draft assessment order, the final assessment could have been completed latest by August 19, 1977, and not beyond that. His further submission was that by no stretch, the date on which the Income-tax Officer has signed the draft assessment, i.e., February 28, 1977, can be taken to be the date on which the Income-
tax Officer has forwarded the draft assessment order, and, therefore, the assessment order passed on August 24, 1977, is clearly barred by limitation as provided under Section 153(2A) of the Act.
8. Shri A. N. Mahajan, learned counsel for the Department, however, submitted that the date on which the Income-tax Officer has signed the draft assessment order and forwarded the letter, i.e., March 28, 1977, should be taken as the date of forwarding the draft assessment order, therefore, the Income-tax Officer could have passed the final assessment order within 31 days from July 29, 1977, i.e., the date on which he received the instructions from the Inspecting Assistant Commissioner. The assessment order passed on August 24, 1977 is, therefore, well within limitation. Shri A. N. Mahajan, further submitted that even if March 10, 1977, is taken to be the date on which the Income-tax Officer has forwarded the draft assessment order, in view of the provisions of Section 153(2A) of the Act read with Clause (iv) of Explanation 1, the limitation for completing the assessment stood extended by the period taken between the forwarding of the draft assessment order by him and receiving the directions from the Inspecting Assistant Commissioner and thus, the entire period from March 10, 1977 to July 29, 1977, is available to the Income-tax Officer from July 29, 1977, for completing the assessment. Thus the assessment order passed on August 24, 1977, is within limitation. Section 153 of the Act provides for time limit for completion of assessment and reassessment. Sub-section (2) read with Clause (iv) of Explanation 1 of the section are relevant and read as under :
153. (1) No order of assessment shall be made under Section 143 or Section 144 at any time after-
(a) the expiry of ....
(2A) Notwithstanding anything contained in Sub-sections (1) and (2), in relation to the assessment year commencing on the 1st day of April, 1971, and any subsequent assessment year, an order of fresh assessment under Section 146 or in pursuance of an order under Section 250, Section 254, Section 263 or Section 264, setting aside or cancelling an assessment, may be made at any time before the expiry of two years from the end of the financial year in which the order under Section 146 cancelling the assessment is passed by the Assessing Officer or the order under Section 250 or Section 254 is received by the Chief Commissioner or Commissioner or, as the case may be, the order under Section 263 or Section 264 is passed by the Chief Commissioner or Commissioner . . .
Explanation 1.--In computing the period of limitation for the purposes of this section--. . . .
(iv) the period (not exceeding one hundred and eighty days) commencing from the date on which the Assessing Officer forwards the draft order under Sub-section (1) of Section 144B to the assessee and ending with the date on which the Assessing Officer receives the directions from the Deputy Commissioner under Sub-section (4) of that section, or, in a case where no objections to the draft order are received from the assessee, a period of thirty days, or ...
shall be excluded."
9. From a bare perusal of Sub-section (2A) of Section 153 of the Act, it will be seen that the assessment may be made at any time before the expiry of two years from the end of the financial year in which the order under Section 146 cancelling the assessment is passed by the Assessing Officer. In the present case, the order cancelling" the assessment was passed by the Assessing Officer on March 31, 1975.
10. Thus, the Income-tax Officer could have completed the assessment latest by March 51, 1977, in the normal course. However, in view of the fact that the proposed addition was more than Rs. 1 lakh, the Income-tax Officer had to comply with the provisions of Section 144B of the Act. Clause (iv) of Explanation 1 to Section 153 excludes the period not exceeding 180 days commencing from the date on which the Assessing Officer forwards the draft order under Sub-section (1) of Section 144B to the asses-see and ending with the date on which the Assessing Officer receives the direction from the Deputy Commissioner under Sub-section (4) of that section.
11. In the present case, there is no dispute on the dates mentioned above. The question is only regarding the interpretation of the word "forward" used in Sub-section (1) of Section 144B of the Act. Section 144B of the Act, so far as it is relevant is as under :
"144B. (1) Notwithstanding anything contained in this Act, where, in an assessment to be made under Sub-section (3) of Section 143, the Assessing Officer proposes to make, before the 1st day of October 1984, any variation in the income or loss returned which is prejudicial to the asses-see and the amount of such variation exceeds the amount fixed by the Board under Sub-section (6), the Assessing Officer shall, in the first instance, forward a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the assessee.
(2) On receipt of the draft order, the assessee may forward his objections, if any, to such variation to the Assessing Officer within seven days of the receipt by him of the draft order or within such further period not exceeding fifteen days as the Assessing Officer may allow on an application made to him in this behalf.
(3) If no objections are received within the period or the extended period aforesaid, or the assessee intimates to the Assessing Officer the acceptance of the variation, the Assessing Officer shall complete the assessment on the basis of the draft order."
12. From a perusal of the aforesaid provision, it is clear that under subsection (1) of Section 144B, the Income-tax Officer has to forward a draft of the proposed assessment order to the assessee while under Sub-section (2) of Section 144B, the assessee is required to forward his objections, if any, to the Income-tax Officer within seven days or 15 days, as the case may be, of the receipt by him of the draft order. The word "forward" occurring under Sub-section (1) or Sub-section (2) of Section 144B of the Act has to be given the same meaning unless the context otherwise requires.
13. The contention of Shri Vikram Gulati, learned counsel, was that the word "forward" is to be equated with the words "issued" and "served", which is misplaced. The Supreme Court in the case of R. K. Upadhyaya v. Shanabhai P. Patel [1987] 166 ITR 163, while considering the question of "issue" and "serve", occurring in Sections 148 and 149 of the Act, held that a clear distinction has been made out between "issue of notice" and "service of notice" under the 1961 Act. The requirement of issue of notice is satisfied when a notice is actually issued. Service under the new Act is not a condition precedent to conferment of jurisdiction on the Income-tax Officer to deal with the matter but it is a condition precedent to the making of the order of assessment. Thus, in view of the aforesaid decision of the Supreme Court, the word "issue" and the word "serve" cannot be equated. Moreover, we find that the word "forward" occurs both in Sub-section (1) and Sub-section (2) of Section 144B of the Act. It has to be given the same meaning. It is well settled that when the Legislature uses the same word in different parts of the same section, there is a presumption that the word is used in the same sense throughout. The Legislature had advisedly not used the word "serve" in Sub-section (1) and Sub-section (2) of Section 144B of the Act. Therefore, we do not agree with the submission of Shri Vikram Gulati that the word "forward" occurring in Sub-section (1) of Section 144B of the Act has been used in the same terms as the words "issue" and "serve". They cannot be equated and, therefore, the date of forwarding cannot be taken as the date on which the assessee had received the draft assessment order, i.e., March 28, 1977.
14. Now the question remains as to what meaning should be given to the word "forward" used in Sub-section (1) of Section 144B of the Act. The word "forward" has not been defined under the Act.
15. In the Law Lexicon by P. Ramanatha Aiyar, reprint edition 1987, the word "forward" has been given its meaning which is as under :
"Forward. As an adjective, in the forepart (Webster Int. Dict). As a verb, to send forward ; send toward or to the place of destination ; transmit to transport or to carry. (Hooper v. Wells, 85 Am. Dec. 211)"
16. In Black's Law Dictionary, revised fourth edition, the word "forward" has been given its meaning which is as under :
"Forward. To send forward ; to send toward the place of destination ; to transmit. Nicoletti v. Bank of Los Banos, 190 Cal. 637, 214 P. 51, 52 ; 27 A. L. R. 1479 ; Katcher v. American Express Co. 94 N. J. L. 165, 109 A. 741, 742."
17. In Section 144B of the Act, the word "forward" has been used as a verb. Therefore, it means to send forward, to send toward the place of destination. A Division Bench of this court in the case of Manoj Kumar Khanduja v. State of U. P. [1985] All LJ 1158, while interpreting the word "forward" occurring in Section 3(1) and (2) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, had held that when the report is sent to the Central Government on a particular date, it means it was forwarded to the Central Government on that date.
18. In the case of Chandan Wood Products v. CIT [1988] 173 ITR 585, the Madhya Pradesh High Court had occasion to consider the word "forward" occurring in Sub-section (1) of Section 144B of the Act. It held that the word "forward" occurring in Section 144B of the Act should be given its natural meaning, which is "to put in course of transmission", i.e., "to transmit". The word "forward" does not mean "serve". In the case of CIT v. Subra-manian and Co. [1989] 180 ITR 149, the Madras High Court had held that the word "forward" is not to be equated with the word "service" and it means putting the draft assessment order in the process of communication to the assessee. In the case of CIT v. Om Agencies [1994] 207 ITR 794, the Orissa High Court, while interpreting the word "forward" occurring under Section 144B of the Act had held that in order to constitute an act of forwarding, the actual sending or despatching is necessary. A direction to send or despatch, without the act being actually carried on, cannot constitute forwarding. The aforesaid decision was subsequently followed by the Orissa High Court in the case of CIT v. Puri Marine Products [1995] 215 ITR 576.
19. In the case of CIT v. Shahzadi Begum [1997] 225 ITR 963, the Andhra Pradesh High Court had held that on the date when a letter is despatched in the usual course, either through special messenger, or by handing it over to a responsible person for posting in the normal course or when a letter is handed over at the post office for delivery to the addressee, it can be said that the letter is forwarded on that date. We are in respectful agreement with the view taken by the Madras High Court, Madhya Pradesh High Court, Orissa High Court and the Andhra Pradesh High Court, in the cases referred to above and are of the view that the word "forward" occurring in Section 144B(1) of the Act can be given only one meaning, i.e., when the order is despatched in the usual course either through special messenger or by handing it over to any responsible person for posting in the normal course or when the letter is handed over at the post office for delivery to the addressee. In the present case, there is no whisper whatsoever in any of the orders of any of the authorities as to what steps were taken by the Income-tax Officer after he signed the draft assessment order on February 28, 1977, and till the same was handed over to the postal authorities on March 10, 1977. Whether it was lying in his office or was given to the process server for being served on the assessee personally or not. The irresistible conclusion is that, the Income-tax Officer forwarded the draft assessment order only on March 10, 1977, when it was handed over to the postal authorities. The period taken from March 10, 1977, i.e., the date of forwarding the draft assessment order to July 29, 1977, the date on which the Assessing Officer received the direction from the Inspecting Assistant Commissioner has to be excluded in view of Clause (iv) of Explanation 1 to Section 153 of the Act for the purposes of computing the limitation for passing the final assessment order. If the aforesaid period is excluded, the limitation for passing the final assessment order available to the Assessing Officer was only up to August 20, 1977. Thus, the assessment order passed on August 24, 1977, is clearly beyond the limitation prescribed under Section 153(2A) read with Clause (iv) to Explanation 1 of the Act.
20. The submission of Shri A. N. Mahajan, learned counsel for the Department, that the limitation for passing the final order stood extended by the period covered by March 10, 1977, to July 29, 1977, and the Assessing" Officer could have availed of the entire period from July 29, 1977, is not correct. Sub-section (2A) of Section 153 of the Act provides for passing the assessment order in the case, where order under Section 146 cancelling the assessment has been made by the Assessing Officer within two years from the end of the financial year in which the said order was passed and by virtue of Clause (iv) of Explanation 1, the period not exceeding 180 days commencing from the date of forwarding of the draft assessment order to the assessee and ending with the date on which the Assessing Officer received the directions from the Deputy Commissioner (at that time Inspecting Assistant Commissioner) is only excluded. The Legislature has not provided for making available the entire period covered by Clause (iv) of Explanation 1 to Section 153 of the Act to the Assessing Officer for passing the assessment order from the date on which he receives the direction from the Inspecting Assistant Commissioner or the Deputy Commissioner. Mr. Mahajan wants to add something to the language of Clause (iv) of Explanation 1 of Section 153 of the Act. We are afraid we cannot add any words to Clause (iv) of Section 153 of the Act which Parliament has not provided for, more so, for extending the period of limitation. We, therefore, do not agree with the contention raised by learned counsel for the Department.
21. Our answer to the aforesaid question of law referred to us by the Tribunal is that the word "forward" is not to be interpreted in the same manner as the words "issue" or "serve" and the Tribunal was right in not interpreting the word "forward" in the same manner as "issue" or "serve". Therefore, the interpretation given by the Tribunal to the word "forward", i.e., the date on which the Assessing Officer signed the draft assessment order is not correct in law. It is the date on which the Income-tax Officer had given the said order to the postal authorities which in the present case is March 10, 1977, and, therefore, the assessment order dated August 24, 1977, was beyond limitation. The reference is answered in favour of the assessee and against the Department.
22. There shall be no order as to costs.