9911796707
TMI Blog2003 (6) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... cross objections are disposed of by this common order for the sake of convenience. 2. In ITA No. 173 (Gau.) of 1998 for the assessment year 1993-94 the revenue has taken the following effective ground of appeal : "for that the ld. CIT(A) was not justified in cancelling the assessment order as invalid." 3. The learned Departmental Representative submits that in this case notices under sections 143(2) and 142(1) of the Act were issued to the assessee. The assessee sought adjournment and thereafter the assessee filed a writ petition before the Hon ble jurisdictional High Court on the ground that "the proceedings should not be done by Shri Dibendu Kumar Deb, Income-tax Officer, Ward Karimganj, P.O. District Karimganj, Assam". The Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer should be restored. 4. On the other hand, the learned A/R of the assessee while strongly relying on the order of the CIT(A) submits that in this case the last date for completion of assessment was 31st March, 1996. On 14-2-1996 the Hon ble jurisdictional High Court has passed the order with the direction that the assessment proceedings shall continue but final order shall not be passed until the matter is disposed of by the Commissioner. The Commissioner has disposed of the matter under section 127 on 14th/15th October, 1996 which was communicated to the assessee on 16-10-1996, therefore, at best the order could have been passed upto 30th November, 1996, being the time available from the date of the order of the Hon ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r shall look to the aspect that the petitioner does not bear the grievance as it can be very well removed by the Commissioner inasmuch as large number of officers are available for this purpose and this can be done by any competent officer. The proceedings initiated as against the petitioner shall continue but the final order shall not be passed until the matter is disposed of by the Commissioner." As a result of direction of the Hon ble High Court the assessee has filed a petition dated 17-2-1996 before the CIT, NER Shillong which was disposed of by the CIT, NER, Shillong on 14th/15th October, 1996, as under: "Sub. :Petition under section 127 of the Income-tax Act, 1961 for transfer of Income-tax case from Karimganj - Regarding Pleas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and disclosure thereof to the assessee as required under section 127(1) are not a mere idle formality. It is a mandatory direction under the law and non-communication thereof to the assessee is not saved by showing that the reasons exist in the file although not communicated to the assessee. The vide of violation of the principles of natural justice on account of omission to communicate the reasons will vitiate the order Ajantha Industries v. CBDT [1976] 102 ITR 281 (SC)." Since in the order passed under section 127 by the CIT, NER, Shillong, there is no mention about the direction that the assessment should be completed only after the draft order is duly approved by the Range, Dy. CIT, therefore, the approval of the Range Dy. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Gau.) of 1998 is against the deletion of addition of Rs. 1 lakh made by the Assessing Officer as undisclosed income from export of coal. 13. The learned Departmental Representative supported the order of the Assessing Officer. 14. On the other hand, the learned A/R of the assessee strongly relied on the order of the CIT(A). 15. After hearing the rival parties and perusing the material available on record we find that the Assessing Officer while applying the net profit rate of Rs. 50 per M.T. of other exporters of coal has not given any particular instance of the case and has also not confronted the same to the assessee, therefore, the lump sum addition made by the Assessing Officer of Rs. 1,00,000 cannot be sustained and accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving reasonable opportunity of being heard to the assessee and accordingly the ground No. 2 taken by the revenue in this appeal is allowed for statistical purpose. 20. Ground No. 3 in the Revenue s appeal No. 174 (Gau.) of 1998 is against the direction of the CIT(A) to allow deduction under section 80HHC of the Act in respect of export profit from coal. 21. At the time of hearing both the parties have agreed that this issue is covered by the order of this Bench of the Tribunal passed in ITA No. 270 (Gau.) of 1999 dated 3-2-2003 for the assessment year 1995-96 in the case of the assessee in which this Bench of the Tribunal has set aside the issue and restore the matter to the file of the Assessing Officer. 22. That being so and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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