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TMI Blog2009 (8) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... h each of the assessment orders in exercise of powers under section 263 of the Act. Thereafter, the appeals filed by the assessees were closed as infructuous by separate orders passed. Tribunal allow the appeal of the respondent assesee. Thus the present appeal is filed. Held that- allow the appeal. The Assessing Officer was regularly prompted to the post of the assistant Commissioner in 2001 and had exercised powers of Assistant Commissioner for over a period of two years. Therefore, the Assessing Officer was competent in law to make the initial block assessment and the order of the Tribunal overlooking the materials available on record were not sustainable. - 10, 11, 15, 18 of 2006 - - - Dated:- 7-8-2009 - RANJAN GOGOI and SARMA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2005, passed by the learned Income-tax Appellate Tribunal, Gauhati Bench allowing the appeals filed by the respondents-assessees before the learned Tribunal. 3. A reading of the impugned orders dated September 15, 2005 indicates that the learned Tribunal came to the conclusion that as the Assessing Officer, one Sri Dibyendu Kumar Deb, was promoted as Assistant Commissioner of Income-tax on November 7, 2001, the original assessment orders passed by him were so passed when the incumbent was holding the post of Income-tax Officer. As under section 158BG of the Act, assessment in block cases is to be finalised by an officer not below the rank of Assistant Commissioner of Income-tax, the learned Tribunal held each of the initial orders of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Income-tax was competent to exercise the powers vested in the said office and, therefore, the assessment orders passed by the said officer are in conformity with the requirements of section 158BG of the Act. In this regard, reliance has been placed by Sri Bhuyan on the observation of the apex court in paragraph 21 of the judgment in Pushpadevi M. Jatia [1987] 3 SCC 367; [1988] 64 Comp Cas 228, the details of which will be noticed in a subsequent part of this order. 6. Controverting the submissions advanced on behalf of the appellants, the learned counsel for the respondents-assessees have placed before this court the provisions contained in section 2(9A) of the Act which define the Assistant Commissioner in the following terms: "( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said order is a matter that did not receive consideration of the learned Tribunal. Ordinarily and in the normal course the failure to consider the aforesaid aspect of the matter should have resulted in an order of remand to the learned Tribunal for a de novo consideration of the question. However, as the question arising is a pure question of law, we are of the view that there is no impediment in a final determination of the said question by us in the present appeal proceedings. 9. In Pushpadevi M. Jatia [1987] 3 SCC 367; [1988] 64 Comp Cas 228, the apex court in paragraph 21 of the judgment had laid down, though in the context of an order of preventive detention, that (headnote of 64 Comp Cas 228): "Where an office exists under the law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incompetent to make such an arrangement. In fact, the specific pleadings of the Department before the learned Tribunal in this regard had not even been controverted by the respondents-assessees. The Commissioner of Income-tax is an authority who is entrusted with the duty and responsibility to ensure the smooth conduct of work in his Commissionerate. The promotion order of the Assessing Officer dated November 7, 2001, indicates that over 900 persons had been promoted, at one time, from the post of Income-tax Officer to that of Assistant Commissioner of Income-tax. Naturally, the process would have taken time. In such a situation, there would be hardly any justification to deny the Head of the Commissionerate the power and competence to maki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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