1. At the instance of the Commissioner, the Income-tax Appellate Tribunal, Delhi Bench 'B', Delhi, has referred the following question stated to be of law and to arise out of its order dated December 10, 1980, passed in I.T.A. No. 3279(Del) of 1978-79 for the assessment year 1971-72 :
'Whether, on the facts and in the circumstances of the case, the Tribunal was legally correct in remitting the matter to the Commissioner of Income-tax (Appeals) for deciding the appeal afresh after giving the assessee an opportunity of being heard ?'
2. We have heard Sri Prakash Krishna, learned standing counsel for the Commissioner. No one has appeared on behalf of the respondent.
3. The Tribunal disposed of the assessee's appeal with the following observations :
'4. The assessee has come up in second appeal as regards the quantum of assessment. The appeal was heard ex parte as assessee failed to appear at the hearing. Learned Commissioner (Appeals) firstly, pointed out that the grounds of appeal as filed before him had been drafted in a faulty and confused manner. Next, the Commissioner took the view that as the assessee had, on receipt of a draft assessment order from the Income-tax Officer under Section 144B(1), failed to submit objections within the time allowed by law and that as consequently, the assessment in questionhad been finalised under Section 144B(3), the assessee could not challenge the said assessment by way of appeal. Further, the Commissioner mentioned 'even otherwise the assessee has not raised any concrete argument nor furnished any material to show how and why the total income computed by the Income-tax Officer is not correct or that the addition made by him is not genuine.' We are of the view that the failure on the assessee's part to raise objections against the draft assessment as aforesaid, does not curtail the assessee's right of appeal as available under Section 246(1) or (2) of the Income-tax Act. That being the position we remit the matter to the Commissioner (Appeals) for fresh decision according to law. We make it clear that by the present order, we are not giving any direction to the learned Commissioner so far as the question of production of any additional evidentiary material before him is concerned. The assessee should, however, be given the opportunity of being heard before deciding the appeal afresh. In case it seeks to produce any additional evidence or to raise any additional ground of appeal, such issues may be disposed of on merit according to law.'
5. The question as referred by the Tribunal does not project any controversy. The Commissioner having taken the view that the assessee had no right of appeal and the Tribunal having upset that view, its order setting aside the appellate order and remanding the appeal to the Commissioner of Income-tax (Appeals) for fresh disposal was proper. In any case that view is not challenged in this reference.
6. Further, the case was remanded as far back as on December 10, 1980, and the proceedings must have been concluded.
7. For the above reason, we answer the aforesaid question in the affirmative, i.e., against the Revenue and in favour of the respondent.