9911796707
TMI Blog1987 (3) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ntatives before the completion of the assessment. The Appellate Assistant Commissioner accepted this plea but, instead of annulling this assessment order, as contended for by the assessees, sent the matter back to the Income-tax Officer to complete the assessment afresh after giving the legal representatives due notice. The assessee preferred a further appeal to the Tribunal but with no success. The Tribunal held that the completion of the assessment without prior notice to the legal representatives was merely an irregularity and that this could be cured by setting aside the assessment and directing a fresh assessment in accordance with the law after proper notice. An objection was also taken before the Appellate Tribunal at the time of hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions of law said to arise out of the order of the Tribunal disposing of the appeal for the second time : " 1. Whether, on the facts and circumstances of the case, the Tribunal was correct in holding in law that the assessment order in respect of assessment year 1971-72 passed by the Income-tax Officer dated September 10, 1979, was not invalid being barred by limitation ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that the Appellate Assistant Commissioner, vide his order dated June 21, 1975, which was confirmed by the Income-tax Appellate Tribunal, vide order dated July 28, 1977, in ITA No. 2449 (Delhi) of 1975-76, could extend the bar of limitation imposed under section 153(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier appeal filed against the original assessment. There are two difficulties in accepting the contention. In the first place, though the assessee had sought for the reference of as many as five questions of law, the question now urged by Shri Sharma is not one of the questions on which reference was sought from the Tribunal. It is well settled that the jurisdiction of the High Court under section 256(2) is in the nature of a mandamus and this court can call upon the Tribunal only to refer those questions of law which arise out of the order of the Tribunal and of which reference to this court was sought before the Tribunal. Moreover, this is also not one of the questions the reference of which is sought in the present application. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Full Bench of the Kerala High Court that where matters are decided by one appellate authority in the first instance, that appellate authority would be bound by the said order and cannot consider those contentions again when the matter subsequently comes up after remand. In that case, initially, the Appellate Assistant Commissioner had disposed of the appeal. When the same points were urged when the assessment was made on remand, the Kerala High Court pointed out that up to the stage of the Appellate Assistant Commissioner that would be final, but that it would be open to the Tribunal to consider the contentions if raised before it. On the same principle, in the present case, the contentions having been raised and decided by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee once again to raise a controversy. Learned counsel also relied upon the decision of the Bombay High Court in P. V. Doshi v. CIT [1978] 113 ITR 22 and sought to contend that the principle of finality will not apply since in this case the original assessment itself was, according to the petitioner, null and void. In our opinion, this plea also suffers from an infirmity. It is no doubt the plea of the assessee that the assessment is void, but the question whether the assessment was void ab initio or was an irregular assessment, the supervening illegality in which case could be cured, was a debatable point which was urged before the Tribunal and was decided against the assessee. In fact that decision appears to follow from the princi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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