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TMI Blog2011 (4) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether the Appellate Tribunal is right in law and on facts in holding that the Assessing Officer was not empowered to travel beyond the two specific issues contained in the order of remand passed by the Commissioner of Income-tax (Appeals) in the proceedings under section 115J of the Income-tax Act, 1961, to cover the tax liability of the assessee ?" 3. For assessment year 1988-89, the assessee received contribution from the consumers aggregating Rs. 62,44,745. The Assessing Officer treated the receipt as revenue in nature and brought the same to tax for the said assessment year. The Assessing Officer also did not allow deduction on account of investment allowance on the ground that the assessee did not create necessary reserves as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self to the directions on the specific issues and not to embark on an omnibus enquiry and investigation into fresh issues not considered earlier. The assessee carried the matter in second appeal before the Tribunal. Both the appeals, viz., the appeal against the earlier order passed by the Commissioner (Appeals) as well as against the subsequent order came to be decided by the Tribunal by a common order, which is impugned in the present appeal. The Tribunal by the impugned order held that this was a case of partial set aside which was justified by the facts and circumstances in respect of two issues, viz., receipts on account of the service lines and investment allowance which were raised before the Commissioner (Appeals) and had been consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirm, reduce, enhance or annul the assessment ; or the appellate authority may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment in accordance with the directions given by the appellate authority after making such further inquiry as may be necessary, and the Assessing Officer shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment. Thus, the section, or more specifically the clause stipulates confirmation, reduction, enhancement or annulment of the assessment. Alternatively, the section envisages setting aside of assessment and referring the case back to the Assessing Officer for making a fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a case where, an appellate authority wants to exercise powers of enhancement, under sub-section (2) of section 251 of the Act such powers have to be exercised after giving a notice for enhancement providing for a reasonable opportunity of showing cause and not in the absence of such a notice. This provision itself gives an indication that even if the appellate authority wants to process a new source of income which forms part of either return of income or the order of assessment, but was not in challenge in appeal before the appellate authority, the appellate authority has to give a reasonable opportunity of hearing before processing such a source of income and enhancing the assessment. A fortiori if it is not open to the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority is always in accordance with the directions given by the appellate authority for making a fresh assessment. But, the most material part of the provision is the opening portion which stipulates "In an appeal against an order of assessment". In other words, the entire gamut of powers which are available to the appellate authority is governed within the four corners of the subject-matter of appeal. The subject-matter of appeal is the assessment of income which forms part of the order of assessment in the light of the return of income filed by an assessee. Examining the facts of the present case in the light of the aforesaid decision, it is apparent that the Assessing Officer was required to make a fresh assessment in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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