9911796707
TMI Blog2008 (3) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment order dated February 28, 1995, passed under section 143(3) of the Act, vide his order dated October 4, 1996 (A-2), with a direction to the Assessing Officer to examine the issue in the light of the provisions of section 50 of the Act - the Commissioner of Income-tax (Appeals) did not enjoy any jurisdiction to set aside the appeal in rectification order X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly wound up somewhere in 1996. The assessment for the year 1989-90 was completed on March 27, 1991, assessing the income under section 143(3) of the Act at an amount of Rs. 67,010. However, the Commissioner of Income-tax in exercise of his revisional power under section 263 of the Act, vide order dated March 23, 1993, set aside the assessment on the ground that the Assessing Officer committed serious error causing prejudice to the interests of the Revenue. He expressed the view that the Assessing Officer failed to give proper treatment to the sale of scrap of machinery and directed the Assessing Officer to complete the assessment afresh. Accordingly, the Assessing Officer in the course of assessment under section 143(3) of the Act took co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer rejected the application on the ground that the claim of the assessee having been rejected under section 143(3) of the Act could not be considered afresh by invoking section 154 of the Act and only an appeal was an appropriate remedy for the assessee against the assessment order dated February 28, 1995. The assessee, thereafter, preferred an appeal before the Commissioner of Income-tax (Appeals) against the order of rejection of application under section 154 of the Act. The Commissioner of Income-tax (Appeals) after conferring due consideration on the contention of the assessee that the scrap was dumped on the assessee by the insurance company at determined Value and since such claim was settled in kind, the same constituted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. CIT [1991] 191 ITR 647 ; AIR 1991 SC 2104, did not apply to the facts of the present case. The Assessing Officer had further held that the sale of scrap was liable to short-term capital gain in terms of the provisions of section 50 of the Act and that the assessee did not file any appeal against the decision of the Assessing Officer. The assesee, however, filed an application under section 154 of the Act, which was rejected. The Commissioner of Income-tax (Appeals) did not decide the issue whether the Assessing Officer was justified in rejecting the application of the assessee under section 154 of the Act on the ground that the very same issue had already been raised and decided by the Assessing Officer under section 143(3) read with sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment of short-term capital gain in the light of the provisions of section 50 is highly debatable. The Assessing Officer had expressed an opinion in the assessment order passed under section 143(3)……………… The Tribunal further observed that the correctness of the view taken by the Assessing Officer relating to his finding in the order passed under section 154 of the Act should have been decided by the Commissioner of Income-tax (Appeals) and that he had travelled beyond his powers in substituting his own opinion on the issue relating to the provisions of section 50 of the Act, to the opinion of the Assessing Officer in the absence of any appeal before him against the order dated February 28, 1995, passed by the Assessing Officer under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, on further appeal, has rightly held that as no appeal against the order of assessment passed under section 143(3) of the Act was filed and the appeal was preferred only against the rectification order dated February 2, 1996 (A-3), the Commissioner of Income-tax (Appeals) did not enjoy any jurisdiction to set aside the aforementioned order. The jurisdiction of an Assessing Officer to rectify an assessment order under section 154 of the Act is limited as he could make correction of errors apparent on the face of the record. In that regard reliance has rightly been placed on the judgment of the hon'ble the Supreme Court in T. S. Balaram v. Volkart Brothers [1971] 82 ITR 50 ; AIR 1971 SC 2204. Similar view has been reiterated in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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