9911796707
TMI Blog1991 (9) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... rom M/s. Rafiullah Bros. as shown subject to rectification as per allocated share income of the firm Rs. 12,883 2. 55% share of M/s. Oriental Drug Distributors as shown subject to rectification Rs. 44,357 ----------- Rs. 57,240 Life Insurance premium deduction under section 80C be considered on production of premium receipt as there is variation in payment of premium amount ----------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the CIT under section 263 cancelling the original assessment was null and void and was not an order in the eye of law and accordingly fresh order of assessment passed by the IAC. Assessment is without jurisdiction, invalid and may be annulled. " 4. The learned CIT(A) admitted the said additional ground as according to him, it was of a technical and legal nature consideration of which does not require any fresh evidence. 5. At the hearing it was the submission of Shri Tibrewal, the learned counsel of the assessee, that the original assessment dated 26-2-1977 was not erroneous and prejudicial to the interest of revenue and as such condition precedent for invoking the provisions of section 263 were absent. It was further contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions of the learned Authorised Representative and I cannot but agree that the present order of assessment which is the subject matter of this appeal has no basis to stand upon and it cannot be upheld. I, therefore, hold that the assessment order is without the authority of law and is null and void. " 6. The revenue is aggrieved and has come up in appeal before the Tribunal. The original appeal was filed before the Income-tax Appellate Tribunal, Gauhati Bench. The same was transferred to Calcutta and it has been fixed for hearing from time to time since 1989. However, there has never been any compliance to the notices. The last hearing was fixed on 10-9-1991 and the notice was duly served on the assessee. However, there was agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal before the Appellate Tribunal. Section 246 of the Act did not provide for filing appeal before the first appellate authority i.e., Dy. Commissioner of Income-tax (Appeals)/Commissioner of Income-tax (Appeals) against the order under section 263. There is, therefore, no reason for the learned CIT(A) to entertain the ground which challenges the jurisdiction of the Commissioner under section 263 of the Act. The Hon'ble Supreme Court in the case of Champalal Binani v. CIT [1970] 76 ITR 692 considered the question of jurisdiction in the context of writ petition filed before the High Court and it was held that where remedy is provided by way of appeal and if any grievance about the sufficiency of the opportunity given to the assessee to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Officer passed on June 25, 1977 could have been revised by the Commissioner of Income-tax by the impugned order on February 26, 1978. This question is not free from doubt when section 263 is read with section 144B after the Central Amendment Act 67 of 1984. We consider it not expedient to decide that question in the instant case as the impugned order is appealable. There we direct the petitioner assessee to seek relief in the appeal against the impugned order. If the appeal is filed by the assessee the writ petitioner in one month from today the appellate authority is directed to hear the appeal on merits and pass appropriate orders. All interlocutory orders pending the writ petition stand vacated. " Having failed to get remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut has the matter posted before a Fuller Bench for considering the question. If that is the position even with regard to a question of law, the position will be a fortiori with regard to a question of fact. This view has been expressed to maintain the judicial decorum and decency and in the interest of comity of judicial precedents. If the co-ordinate Benches of the Tribunal cannot overrule the earlier decision, it is impossible to hold that a CIT(A) who is of equal and same rank and is not vested with specific jurisdiction can adjudicate on the validity of the order of the Commissioner under section 263. In that view of the matter we hold that the learned CIT(A) has got no jurisdiction and his order is accordingly set aside. 10. This dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
