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TMI Blog2014 (8) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... - the claim of the assessee cannot be accepted. Doctrine of merger - Revision petition u/s 264 and appeal u/s 250 – Held that:- CIT(A) dismissed the appeal as not maintainable - once the petitioner had taken recourse to revisional remedy u/s 264 of the Act and after the rejection of the petition, it was not open to have fallen back on statutory remedy of appeal under the Act – Relying upon Orissa Rural Housing Development Corporation Ltd. v. Asst. CIT [2011 (12) TMI 230 - ORISSA HIGH COURT] - Applying the doctrine of merger, it was held that the assessee was precluded from approaching the appellate court u/s 246/246A of the Act against the assessment order – assessee was unable to justify that when the assessee has already invoked the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared. In the earlier years also, returns were filed declaring agricultural income as also professional income which was in the shape of interest and salary received. The said returns had been accepted by the Department. The case of the petitioner was taken up for scrutiny. The income-tax cases of the petitioner were being handled by Satish Vijay and Company, chartered accountant. The petitioner being an agriculturist was not aware of the legal technicalities and, hence, a manager, Mr. Hardial Singh, had been employed to look after the affairs of the petitioner. The said notices were either served on the manager or were handed over to him who further handed over the same to the chartered accountant The chartered accountant did not atten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the assessment order along with the application for condonation of delay before the Commissioner of Income-tax (Appeals) ( the CIT(A) ). The said appeal was dismissed by the Commissioner of Income-tax (Appeals), vide order dated December 3, 2013, annexure P. 6, holding that since the order of the assessment had merged into order of revision, he had no jurisdiction and, hence, no appeal lies. Hence, the present petitions. 4. Learned counsel for the petitioner argued that the order dated March 30, 2009, passed by the Commissioner of Income-tax under section 264 of the Act was unsustainable. It was further submitted that it was on the advice of the counsel that an appeal was filed before the Commissioner of Incometax (Appeals) against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to furnish any documents to prove the correctness of your business income, I shall be constrained to frame the ex parte assessment under section 144 of the Act, to the best of my knowledge and on the basis of the information and facts available on record. The assessee has failed to avail of himself of any of the opportunities allowed to him including the last one. In view of the facts and circumstances of the case, I am constrained to frame the assessment ex parte to the best of my judgment. In framing the assessment, I am also taking note of the observations made by my predecessor officer in his order for the assessment year 2004-05 in which he has, inter alia, treated the agricultural income as the business income of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questionnaires were issued to the assessee on different dates but no co-operation was extended by the assessee in the matter of finalization of assessment during the course of assessment proceedings. No proof of agricultural land and sale of agricultural produce was provided by the assessee. Therefore, when the assessee failed to comply and avail of various opportunities provided to him, the Assessing Officer, having left with no other alternative, framed the assessments ex parte under section 144 by appreciating the material available on record. By doing this, the Assessing Officer treated the agricultural income as business income and assessed the same at ₹ 5,50,000. 10. The petitioner is aggrieved by the revisional order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction under section 264 of the Act. Applying the doctrine of merger, it was held that the assessee was precluded from approaching the appellate court under section 246/246A of the Act against the assessment order. The relevant observations read thus : Thus, the assessee can invoke the provisions of section 264 of the Income-tax Act only after the time for filing the appeal expired or after waiver of his right of appeal. Section 264 of the Income-tax Act is an alternative remedy available to the petitioner assessee, who does not want to avail of the remedy by way of appeal. Thus, remedy available under section 264 of the Income-tax Act is an alternative remedy and not an additional remedy and the assessee is not permitt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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