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TMI Blog1984 (2) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... against the making of the assessment under section 144, there was an application under section 146 of the Act filed by the assessee on 20-4-1981 praying for the cancellation of the ex parte assessment and making of afresh assessment in accordance with law. No orders on this application under section 146 appear to have been passed by the ITO. The assessee, however, filed an appeal against the assessment order to the AAC. In this appeal, the AAC held, firstly, that the default of notices under section 143(2) of the Act was without reasonable cause and, therefore, the ex parte assessment under section 144 was justified. The AAC further held that the treatment of cash deposits amounting to Rs. 19,152 as the assessee's income from undisclosed s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been filed by the assessee on 20-4-1981 and brought to my notice that till now no order had been passed by the ITO on this application under section 146. He submitted that if in the order, under section 146, passed by the ITO on the assessee's application, the assessment under consideration here was cancelled, the present appeal will become infructuous. He further submitted that even if the ITO rejected the assessee's application under section 146, it will be open to the assessee to file an appeal against the order of the ITO under section 146 and if as a result of the appeal the assessment under consideration here was cancelled either by the AAC or by the Tribunal, the same result will follow, i.e., the present appeal will become infru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble High Court and the issue arose before their Lordships of the Hon'ble Calcutta High Court in the cases of Raja Benoy Kumar Sahas Roy v. CIT [1953] 24 ITR 70 and CIT v. Duncan Bros. Co. Ltd. [1955] 28 ITR 427, whether if no reference was made by the Tribunal within 90 days, the reference can be made subsequently by the Tribunal. Their Lordships laid down that the question of limitation arises only where there is a delay by the parties to the dispute before a Court and not where a Court or a public authority has not performed its duty resulting in delay and in such a case it could never be the intention of the Legislature that the object of the Legislature should be set at nought not by the breach in performance of public duty by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of merit in the argument of the assessee's learned counsel Shri Mehta that in an appeal against the assessment order, the AAC has merely to confine himself to the dispute regarding the amount of the total income assessed or the amount of the tax determined or the status under which the assessment is made and it is not open to him to consider and adjudicate upon whether the assessment was properly made under section 144 which could be considered only in an order under section 146 and against which a separate appeal is provided under clause (d) of sub-section (1) of section 246. Besides, before the AAC decides an appeal against an assessment order, he has to wait for the order of the ITO on the assessee's application under section 146 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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