9911796707
TMI Blog2002 (9) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue is: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the Commissioner of Income-tax (Appeals) was not competent to entertain the enhancement petition made by the Department?" The assessment year is 1981-82: A draft assessment was made in respect of the assessee's income for this year in which the Assessing Officer proposed the disallowance of the claim of the assessee for deduction of loss on sale of investment amounting to Rs.14,27,500. The Inspecting Assistant Commissioner, to whom the draft assessment had been forwarded as required by section 144B of the Income-tax Act, gave a direction to the Assessing Officer under section 144B(4) of the Act to allow the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the assessee supported the order of the Tribunal and submitted that the appellate authority can only do what the original authority could do, and as the hands of the Assessing Officer were tied by reason of the directions given under section 144B(4) read with section 144B(5) of the Act, the Commissioner was equally bound by the direction and, therefore, did not have jurisdiction to interfere with that order by way of enhancement, or to set aside the order on the ground that the case for enhancement was required to be considered. Section 251 of the Income-tax Act deals with the powers of the Appellate Commissioner. Section 251(1)(a) of the Act sets out the scope of the appellate power. That clause as it then stood read thus: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 144B(4) of the Act. The view taken by the Tribunal that section 144B(5) of the Act imposes a limitation of the appellate power is a wholly erroneous view, and does not find any support from the statutory provision dealing with the powers of the appellate authority. When the statutory provision is clear, the width of the power conferred by the provision is not to be cut down, unless limitation therein is imposed expressly by the statute or is implicit in the statute. Here, the Commissioner while hearing an appeal is required to examine the correctness of the order of assessment made. The fact that the assessment was made in conformity with the directions issued by another officer who is below the Commissioner does not result in a restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an direct the Income-tax Officer to do what he has failed to do, have been misunderstood by the Tribunal as amounting to a limitation on the power of the appellate forum. That observation of the court was only meant to emphasise the fact that the appellate power was plenary, and that it was open to that appellate authority to do all that the Income-tax Officer could do. That does not make the appellate authority subordinate to the intermediate authority, viz., the Inspecting Assistant Commissioner who, under section 144B of the Act, has the power to issue directions to the Assessing Officer. It is open to the Commissioner sitting in appeal to make the enhancement overriding the directions given by the Inspecting Assistant Commissioner. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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