2004 (8) TMI 39

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..... y the assessee against order of the Tribunal dated June 19, 2003. The facts relevant for purposes of this appeal are that assessment for the block period April 1, 1985 to November 23, 1995, was completed in the case of the assessee on November 29, 1996. Subsequently, the Assessing Officer noticed that certain additions were required to be made as per the findings recorded in the assessment order .....

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..... tion 158BC read with section 143(3) of the Income-tax Act, so the assessee, if advised under the law, could have challenged this finding of the fact by the Assessing Officer during the pendency of the appellate proceedings before the Income-tax Appellate Tribunal in his appeal against the order passed by the Assessing Officer under section 158BC read with section 143(3) of the Income-tax Act which .....

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..... ing the doctrine of merger. The said doctrine could have been invoked if the Tribunal had taken cognisance of the order of rectification while deciding the appeal against the original assessment. Dr. N.L. Sharda, learned counsel on behalf of the Revenue, supported the view taken by the Tribunal in the impugned order and submitted that remedy of the assessee was to challenge the order of rectifica .....

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..... ing appeal against the original assessment but the assessee also had a remedy of filing a separate appeal against the order of rectification. It would have been better if either party had brought to the notice of the Tribunal that an order of rectification had been passed which had been challenged before the Tribunal so that the Tribunal could have decided both the matters simultaneously. That hav .....

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..... ammed v. State of Kerala [2000] 245 ITR 360 (SC). We are, therefore, of the view that the appellant had a right to be heard on the merits in the appeal filed against the order of rectification. Accordingly, this appeal is allowed and the order of the Tribunal under appeal is set aside and the matter is remanded to the Tribunal for a fresh decision on the merits in accordance with law.
Case la .....

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