9911796707
TMI Blog1991 (8) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, the assessee filed return on 19-12-1971 declaring total income of Rs. 27,350. The original assessment was completed on 24-4-1973. However, during the process of assessment for the assessment year 1973-74, as mentioned in the order made under section 143(3)/144B on 18-8-1980 for the assessment year under appeal, the Assessing Officer came in possession of infomation on the basis of which he had reason to believe that income chargeable to tax for the assessment year 1971-72 had escaped assessment. Accordingly reassessment was framed on 18-8-1980. That assessment was challenged in appeal. 3. The CIT(A) in appeal bearing No. 373(Central)/Cbd/80-81 dated 25-3-1982 deleted the addition made in the reassessment proceedings. That order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee in response to which written submssions were filed contending that the order made by the Assessing Officer dropping the penalty proceedings cannot be treated as an order within the meaning of section 263(1) of the Income-tax Act, 1961 in terms of the ratio of the Allahabad High Court judgment in the case of Ramlal Kishore Lal v. CIT [1972] 84 ITR 138, that there was no valid penalty order since it was not communicated to the assessee in terms of the ratio of the judgment in the case of Smt. Jijeebai Shinde v. CGT [1986] 157 ITR 122 (MP) and that the CIT, therefore, had no jurisdictional facts to assume lawful jurisdiction. 6. The CIT, however, rejected these contentions by pointing out that the Allahabad High Court judgment was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly assumed jurisdiction and the order made by him cannot be interfered with at the instance of the assessee. 8. After careful consideration of the rival submissions we find that for determination of the issue whether the CIT had jurisdictional facts for lawful assumption of jurisdiction, we have to determine as to what was the record that CIT could call for and on examination of which he could consider the order passed therein by the Assessing Officer erroneous as well as prejudicial to the interests of revenue. It appears that there is concurrence of judicial opinion that reference to "the record" in section 263(1) is in respect of the record that was in existence at the time the Assessing Officer passed his order. The materials wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would depend upon the nature of the evidence omitted. To our mind this is the position of law taking into consideration the following judicial authorities:---- (i) Rampyari Devi Saraogi v. CIT [1968] 67 ITR 84 (SC); (ii) Smt. Tara Devi Aggarwal v. CIT [1973] 88 ITR 323 (SC); and (iii) Ganga Properties v. ITO [1979] 118 ITR 447 (Cal.). 10. From the facts of this case, we find that the Assessing Officer dropped the penalty proceedings on the learned Counsel for the assessee pointing out to him that the assessee was in appeal before the Tribunal on the quantum of assessment from which the penalty proceedings under section 271(1)(c) emanated. At that point of time, the order of the first appellate authority which was factually before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e addition. The CIT, therefore, had to consider and find whether the order made by the Assessing Officer was erroneous as well as prejudicial to the interests of revenue on such facts. The CIT thus had the jurisdictional facts to assume lawful jurisdiction for making an order under section 263 of the Act. 12. It has been argued before us by the learned counsel for the assessee that dropping of the penalty proceedings by the Assessing Officer was not an order and, therefore, the CIT could not assume lawful jurisdiction. We do not find substance in this contention because the penalty proceedings initiated during the course of assessment with the notice issued to show cause came to an end by the order made by the Assessing Officer dropping t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
