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Padmini Chandrasekaran Vs. Wealth-tax Officer - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Madras
Decided On
Judge
Reported in(1983)6ITD557(Mad.)
AppellantPadmini Chandrasekaran
RespondentWealth-tax Officer
Excerpt:
.....found that no notice had been served on the assessee. so he set aside the assessment and directed fresh assessment to be made.the assessee challenges before us the right of the commissioner (appeals) to direct fresh assessment. the ground raised by the assessee is as follows : 3. the commissioner of income-tax (appeals)-i ought to have noted that while cancelling the assessment which even otherwise was invalid he had no jurisdiction and power to give a direction for making an assessment in case of this kind by extending the period of limitation. the appellant, therefore, prays that the hon'ble appellate tribunal be pleased to cancel the direction given by the commissioner (appeals) authorising the officer to make a fresh assessment which he is not competent to do.2. we cannot agree with.....
Judgment:
1. The assessee appeals. The wealth-tax assessment year is 1976-77. The assessment was under Section 16(5) of the Wealth-tax Act, 1957 ('the Act') a best judgment assessment because the WTO thought that the assessee failed to comply with the terms of a notice issued. The Commissioner of Wealth-tax (Appeals) hearing the matter under Section 23 of the Act found that no notice had been served on the assessee. So he set aside the assessment and directed fresh assessment to be made.

The assessee challenges before us the right of the Commissioner (Appeals) to direct fresh assessment. The ground raised by the assessee is as follows : 3. The Commissioner of Income-tax (Appeals)-I ought to have noted that while cancelling the assessment which even otherwise was invalid he had no jurisdiction and power to give a direction for making an assessment in case of this kind by extending the period of limitation. The appellant, therefore, prays that the Hon'ble Appellate Tribunal be pleased to cancel the direction given by the Commissioner (Appeals) authorising the officer to make a fresh assessment which he is not competent to do.

2. We cannot agree with the assessee. If it was a case under the Income-tax Act then there was no scope at all for such an argument because Section 146 of the Income-tax Act, 1961 ('the 1961 Act') specifically empowers the ITO to proceed to make a fresh assessment.

The absence of such a like provision in the Wealth-tax Act does not make any difference because a like provision to that effect, though not worded like Section 146, is there in the Wealth-tax Act also.

3. One of the principal submissions of the assessee was that wealth-tax assessment for the assessment year 1976-77 should be normally completed by 31-3-1981 and that by incompetent direction made without authority, the time limit for the assessment will be extended by an indefinite period. What we think is that in making this submission the assessee has lost sight of Section 17A(3) of the Act, which provides as follows : 17A. (3) Notwithstanding anything contained in Sub-sections (1) and (2), an order of fresh assessment in pursuance of an order passed on or after the 1st day of April, 1975, under Section 23, Section 24 or Section 25, setting aside or cancelling an assessment, may be made at any time before the expiry of four years from the end of the financial year in which the order under Section 23 or Section 24 is received by the Commissioner or, as the case may be, the order under Section 25 is passed by the Commissioner.

So this sub-section extracted above provides for a fresh assessment in pursuance of an order setting aside or cancelling, passed by an appellate authority acting under Section 23 of the Act and also provides for the time limit for making such a fresh assessment. So the time limit is not extended by the impugned appellate order as contended by the assessee but by the very statute of wealth-tax itself. What we are inclined to think is that even if the Commissioner (Appeals) had not ordered fresh assessment after setting aside or cancelling, still it is within the powers of the WTO to make a fresh assessment once the original assessment made by him is set aside or cancelled by the appellate authority.

4. Now Section 23(5), which provides for the powers of AAC in disposing of an appeal, may also be noted. It is as follows : 23. (5) In disposing of an appeal, the Appellate Assistant Commissioner or, as the case may be, the Commissioner (Appeals) may pass such order as he thinks fit which may include an order enhancing the assessment or penalty.

5. So the power of the AAC is of wide amplitude. He may pass such order as he thinks fit. That includes the power of directing a fresh assessment to be made in case he cancels or sets aside the assessment appealed against. So considering the fact that Section 23 provides powers of such wide amplitude and Section 17A(3) provides for time limit in respect of fresh assessment to be made in pursuance of an appellate order, we are of the view that the direction issued by the Commissioner of Wealth-tax (Appeals) to make a fresh assessment is not bereft of force or authority. The Commissioner (Appeals) has ample powers to issue such directions. Therefore, the appeal of the assessee is dismissed.


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