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Liyaquat A. Rangoonwala Vs. Thirteenth Income-tax Officer. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberIT APPEAL NO. 227 (BOM.) OF 1984 [ASSESSMENT YEAR 1979-80]
Reported in[1984]9ITD126(Mum)
AppellantLiyaquat A. Rangoonwala
RespondentThirteenth Income-tax Officer.
Excerpt:
.....of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 2. the assessee has now filed an appeal against the order of the aac dated 28-10-1983 on the ground that the order of the aac was bad in law and without jurisdiction in view of the fact that shri d. meenakshi singh on 28-10-1983 should be quashed and set aside as it was without jurisdiction and was bad in law. by the present order of the aac dated 28-10-1983, the assessee reverted to the position of the order under section 146 which was bad in law......effect of the order under section 146 would be that the ito gets a fresh opportunity of making a fresh assessment after issuing a fresh statutory notice, whereas the order of the aac dated 20-9-1983 had annulled the assessment leaving no right of further assessment for the ito. by the present order of the aac dated 28-10-1983, the assessee reverted to the position of the order under section 146 which was bad in law. therefore the order of the aac dated 28-10-1983 should be cancelled.3. i have carefully considered the facts and circumstances of the case. the original assessment under section 144 was made on 30-3-1983. the ito had reopened the assessment on 30-7-1983. the assessment, therefore, did not exist after that date. the assessees appeal before the aac was rendered infructuous.....
Judgment:
ORDER

1. An ex parte assessment under section 144 of the Income-tax Act, 1961 (the Act) was made in this case on 30-3-1983. The assessee took two remedial measures against this assessment. He filed an application under section 146 of the Act on 25-6-1983 before the ITO for reopening the assessment. The ITO reopened the assessment under section 146 on 30-7-1983. Simultaneously, the assessee also filed an appeal before the AAC, who, after hearing the assessees representative, by his order dated 20-9-1983, held that the assessment order for the year under consideration was barred by limitation and, therefore, it required to be annulled. It appears that the AAC, who passed this order on 20-9-1983 was Shri D. S. Rastogi, who was not aware of the reopening of the assessment by the ITO on 30-7-1983. Shri Rastogi appears to have been transferred and Smt. Meenakshi Singh took over the post of the AAC. She did not issue any fresh notices, but on a perusal of the record found that the assessment had already been reopened by the ITO under section 146. She, therefore, passed an order on 28-10-1983 to the effect that since the assessment had already been reopened by the ITO under section 146, the appeal filed by the assessee had become infructuous. Therefore, she dismissed the appeal.

2. The assessee has now filed an appeal against the order of the AAC dated 28-10-1983 on the ground that the order of the AAC was bad in law and without jurisdiction in view of the fact that Shri D. S. Rastogi, the previous AAC, has already annulled the assessment on 20-9-1983. Hence, it was submitted that the order passed by Smt. Meenakshi Singh on 28-10-1983 should be quashed and set aside as it was without jurisdiction and was bad in law. During the course of the hearing, the learned counsel for the assessee has brought to my notice another letter addressed by Smt. Meenakshi Singh to the assessee on 22-11-1983 wherein it was stated that since her predecessor had already dismissed (sic) the ITOs order under section 144 on 20-9-1983 her order dated 28-10-1983 may be treated as an order under section 154 of the Act. The learned counsel for the assessee has proceeded to argue that the assessment under consideration was time barred and, hence, was without jurisdiction. The effect of the order under section 146 would be that the ITO gets a fresh opportunity of making a fresh assessment after issuing a fresh statutory notice, whereas the order of the AAC dated 20-9-1983 had annulled the assessment leaving no right of further assessment for the ITO. By the present order of the AAC dated 28-10-1983, the assessee reverted to the position of the order under section 146 which was bad in law. Therefore the order of the AAC dated 28-10-1983 should be cancelled.

3. I have carefully considered the facts and circumstances of the case. The original assessment under section 144 was made on 30-3-1983. The ITO had reopened the assessment on 30-7-1983. The assessment, therefore, did not exist after that date. The assessees appeal before the AAC was rendered infructuous after the ITOs order under section 146. The previous AAC should have taken pains to ascertain the fate of the assessees application under section 146 and then proceeded to hear the appeal. He, however, proceeded to hear the appeal against an assessment order which no longer existed. Therefore, his order is also a nullity.

As regards the validity of the present order of the AAC, to my mind, it is not a statutory order at all. Having found that the order under appeal before her, namely, the assessment order dated 30-3-1983 had already been cancelled by the ITO, the appeal before her was rendered infructuous. She merely struck it off. This was an administrative action. Therefore, nothing further requires to be done about it. In the circumstances of the case, she was justified in striking off the appeal as infructuous. As to her letter dated 22-11-1983 describing her order as an order under section 154, I would refrain from making any comments as this is not in appeal before me. To my mind, however, the contents of the letter did not change the complexion of the case at all. Her order being just an administrative direction to the office to strike out the appeal from the registers calls for no interference. Hence, the assessees appeal is hereby dismissed.


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