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TMI Blog2009 (7) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... er initiated against the assessee as a matter of fact, would be completed in the sense that once he noticed that AO could not have passed an order completing the assessment without deciding this issue and without referring the same to the Chief Commissioner, he would have only cancelled the assessment and then, after obtaining the decision from the Chief Commissioner or the Commissioner, he could have incorporated the same and completed the assessment – The same has been done by the AO – appeal dismissed. - 2619 of 2005 (B) - - - Dated:- 13-7-2009 - P. R. RAMAN and P. BHAVADASAN JJ. C. Kochunny Nair and Dale P. Kurien for the appellant. P. K. R. Menon and Jose Joseph for the respondent. JUDGMENT The judgment of the court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bit P-2 rectification order dated January 16, 1996, was passed by the Assessing Officer. He revised the original order of assessment with a view to withdraw the excess interest. He took the view that the assessee's return is not complete in all respects as the audit report in Forms Nos. 3CA and 3CD and also the audit report under section 44AB of the Income-tax Act as also the report contemplated under section 619 of the Companies Act were not filed. Therefore, attributing the delay on the part of the assessee in not filing the said report, the interest was withdrawn from the period from January 1, 1990, to September 30, 1991, and the excess interest granted by the earlier order was demanded which came to Rs. 33,07,500 as against the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the delay is attributable on the part of the assessee was not considered or decided. It has been held that the decision rendered by the Assessing Officer under section 154 of the Act is liable to be set aside as the competent authority to decide the issue is the Chief Commissioner or the Commissioner, as the case may be. Accordingly, the appeal was allowed with a direction to the Assessing Officer to deal with the matter afresh in terms of section 244A(2). Except for the statistical purpose, the contention raised on the merits was rejected. Thereafter, the Assessing Officer referred the matter to the Chief Commissioner and it is not disputed that the Chief Commissioner did not award interest for the period from January 1, 1990, to Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded and it can be decided only by the Chief Commissioner. That order was also not challenged. It may be noticed that under section 244A(2) of the Act, if the proceedings resulting in the refund are delayed for reasons attributable to the assessee whether wholly or in part, the period of the delay so attributable to him shall be excluded from the period for which interest is payable. Where any question arises as to the period to be excluded, it shall be decided by the Chief Commissioner or Commissioner whose decision shall be final. Though as per the said provision, it is the Chief Commissioner or the Commissioner to decide as to which portion shall be excluded, it goes without saying that in so deciding, the question as to whether the del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner, as the case may be. That has been decided in this case. The net result of the proceedings under section 154 earlier initiated against the assessee as a matter of fact, would be completed in the sense that once he noticed that he could not have passed an order completing the assessment without deciding this issue and without referring the same to the Chief Commissioner, he would have only cancelled the assessment and then, after obtaining the decision from the Chief Commissioner or the Commissioner, he could have incorporated the same and completed the assessment. The same has been done by virtue of exhibit P-13 by the Assessing Officer. If so, we do not find any good ground to interfere with the judgment under appeal. Accordingly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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