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TMI Blog2009 (9) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... filing fresh returns. Fresh returns were admittedly not filed and thereafter the Assessing Officer completed the assessments for both the assessment years in exercise of the powers vested in him under section 144 of the Act by using the best judgment method. He assessed the income for the two years at Rs. 1.40 crores and Rs. 1.50 crores respectively. Commissioner (Appeals) confirm the action of the Assessing Officer. Income-tax Appellate Tribunal went on to hold that the income to be assessed by the Assessing Officer should not be less than the income returned by the assessee for both the assessment years in his original returns which had been treated as "non est". Held that- when the Tribunal was directing assessment de novo, no fetters a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the law, particularly when the direction has been issued in a miscellaneous application even though there was no such point in issue during the original appellate proceedings? (iii) Whether the Income-tax Appellate Tribunal was right in law in directing the Assessing Officer to reassess the income of the assessee which should not be more than income already assessed under section 144 of the Income-tax Act, 1961, without bringing on record any material evidence as to the quantum of income of the assessee? (iv) Whether the direction given by the learned Income-tax Appellate Tribunal in their order dated July 30, 2004, constitutes rectification of mistake under section 254(2) of the Income-tax Act, 1961, occurred in earlier order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted by the Income-tax Appellate Tribunal and it held that since the Assessing Officer had not gone through the audited accounts, the assessment order was liable to be set aside. The matter was remanded to the Assessing Officer to frame afresh assessment keeping in view the audited accounts now submitted by the assessee. This order itself makes it clear that the assessments were to be framed "de novo". However, the Income-tax Appellate Tribunal went on to hold that the income to be assessed by the Assessing Officer should not be less than the income returned by the assessee for both the assessment years in his original returns which had been treated as "non est". 4. Thereafter, the assessee filed rectification applications and prayed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be "non est" then it meant that they were non-existent in the eyes of law. Such a return which is "non est" cannot be used even against the assessee. Furthermore, when the Tribunal was directing de novo framing of the assessment, then it obviously meant that the assessment had to be framed afresh keeping in view the audited accounts which were now available. Therefore, such a stipulation could not have been made. 7. Having held so, we are also of the opinion that the Tribunal could not have given a direction, while disposing of the rectification applications, that the income or fresh assessment should not be assessed at an amount above the income assessed under section 144 of the Act. The question as to what is the income of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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