9911796707
TMI Blog1990 (8) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... said claim. In the opinion of the learned CIT, Surat (the Commissioner), the assessment as made by the ITO was erroneous and prejudicial to the interest of Revenue is as much as the by-laws of the society provided that voting rights would also be available to such members of the society who were not contributing labour. In the opinion of the Commissioner such provision in the by-laws of the society contravened the proviso to s. 80P(2)(a)(vi) of the Act. He was of the opinion that exemption under s. 80P(2)(a)(vi) was available to a co-operative society only if the by-laws of such a society restricted the voting rights to its members who contribute labour and society, like the one under consideration, which gave right of voting power to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file an appeal against the order of the Commissioner dt. 29th March, 1988 passed under s. 263 in the Tribunal. The assessee-society accordingly challenged the order of the Commissioner by filing ITA No. 1857/90, which is, on the face of it, barred by limitation by 708 days. By filing an application along with the memorandum of appeal, the assessee-society has prayed for condonation of delay caused in filing this appeal. 5. The Revenue is in cross-objection against the appeal filed by the assessee society against the order under s. 263. In its cross objection Revenue has simply supported the order passed by the Commissioner. 6. Mr. K.H. Kaji, the learned counsel for the assessee has vehemently urged that the CIT(A) has fallen into an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of enhancement or modification of the assessment. If the Commissioner chose to pass an order of enhancement or modification of the assessment he need not cancel the assessment and direct fresh assessment. No fresh assessment under s. 143 (3) would be involved in those cases. However, if the Commissioner chose to cancel the assessment, then it would be obligatory on his part to have directed a fresh assessment. Once the Commissioner has opted for cancelling the assessment and directing fresh assessment, the ITO may proceed to make fresh assessment in the given case under s. 143(3) of the Act only and an order passed under s. 143(3) is undisputedly an appealable order under s. 246(c) of the Act. Once an order under s. 143(3) is challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barred by limitation by 708 days. The delay, no doubt, is quite inordinate. But the circumstances which, according to the assessee, caused so much of delay in filing the appeal against the order cannot also be altogether ignored. In view of the nature of the order passed by the Commissioner under s.263 the assessee could have entertained a reasonable belief that as the original assessment had been set aside and the ITO had been directed to make a fresh assessment, there was no necessity of challenging the order of the Commissioner in appeal before the Tribunal. It was in fact after the decision of his appeal by the CIT(A) against the order of the fresh assessment that the assessee, on legal advice, as has been contended by it, could have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such order. It is only on the grounds mentioned above that we have felt inclined to dismiss the appeal against the order under s. 263 without expressing our opinion on the merits of the order passed by the Commissioner. 11. The cross-objection by the Revenue simply supports the order passed by the Commissioner under s. 263. Since the appeal against that order is to be dismissed as discussed above, the cross-objection also does not survive for any specific orders. 12. In the result the appeal against the order under s. 250 of the Act (ITA No. 783/Ahd/90) is allowed for statistical purposes. Consequently the order passed by the CIT(A) on 8th Jan, 1990 is set aside. The CIT(A) is directed to decide the appeal of the assessee afresh acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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