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TMI Blog1992 (9) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... edure for assessment and are, therefore, procedural in nature and non-compliance therewith would be a procedural lapse ? 2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in upholding the order of the Appellate Assistant Commissioner in restoring the case back to the Income-tax Officer directing him to consider afresh from the stage where the irregularity intervened ?" The facts, briefly stated, are that the assessee filed a return declaring income of Rs. 57,811. The assessing authority, however, assessed the income of the assessee at Rs. 3,61,270. The dispute was then carried in appeal to the Appellate Assistant Commissioner by the assessee. It was contended before the Appellate Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Appellate Assistant Commissioner holding that the provisions of section 144B appearing in Chapter XIV in the Act are procedural in nature that non-compliance therewith would be a procedural irregularity capable of being rectified and that section 144B not giving rise to a jurisdictional question, the Appellate Assistant Commissioner was right in setting aside the assessment order and sending the matter back to the assessing authority to re-do the assessment observing the special procedure as contained in section 144B of the Act. The short question for consideration in this reference is whether section 144B is procedural in nature and whether non-compliance therewith will render an assessment order a nullity. Section 144B falls in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the cases where the Income-tax Officer proposes to make any variation in the income or loss shown in the return by the assessee which is more than rupees one lakh. The rationale behind section 144B(1) is that if the income returned by the assessee is sought to be assessed with variation of more than rupees one lakh, then greater precaution should be taken and that is why it is stated that if the variation entails the amount of more than rupees one lakh then a draft order should first be prepared and that should be served on the assessee to enable him to file objections and when the objections are filed, then the draft order together with the objections of the assessee should be referred to the Inspecting Assistant Commissioner for seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed without following the procedure is rendered void. Except one, no authority could be cited by counsel for the assessee that the impugned assessment order was void for want of compliance with section 144B. Sonai River Tea Co. Ltd. v. CIT [1990] 182 ITR 162 (Gauhati) is the solitary authority in favour of the assessee. Section 251(1)(a) of the Act states that while disposing of an appeal, the Appellate Assistant Commissioner or the Commissioner (Appeals) may, inter alia, set aside the assessment and refer the case back to the Income-tax Officer for making a fresh assessment in accordance with the directions given by the Appellate Assistant Commissioner or the Commissioner (Appeals) as the case may be. In Sonai River Tea Co. Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain sums in the assessee's assessment, but did not send a draft assessment order to the assessee as required under that section. Copies of the relevant record of the case of Ashok Textiles, and a full text of the judgment of the Supreme Court has not been filed to show that in the case of Ashok Textiles, the assessment was set aside by the appellate authority with a direction to re-do the assessment. Therefore, it cannot be urged on behalf of the assessee that before the Supreme Court, an identical question was posed that has been posed before us in this reference. Therefore, the assessee cannot take any aid from the judgment of the Supreme Court. In the light of the foregoing discussion, we answer both the questions Nos. 1 and 2 in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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