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income-tax Officer Vs. a Amrutlal and Co. - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Ahmedabad
Decided On
Reported in(1986)17ITD465(Ahd.)
Appellantincome-tax Officer
RespondentA Amrutlal and Co.
Excerpt:
.....146 gives right of objection to the assessee on various grounds. again, section 246 also gives a right of appeal against the assessment completed under section 144. both these rights can be availed of by the assessee simultaneously as there is no provision in law prohibiting such exercise of right. therfore, if one of the two authorities of the income tax department decides the matter on an application or appeal before it, by implication in absence of special circumstances regarding prohibition of such course, the right exercised before the other authority is no longer surviving.per shri p. j. goradia, accountant member - against the order passed by the commissioner (appeals) in his appeal no. cit/r/169/1984-85 the grounds taken are as under : 1. the learned commissioner (appeals) has.....
Judgment:
JUDGMENT ASSESSMENT--Appeal against original order already disposed of.

The order passed by the assessing officer reopening the assessment made under section 144 subsequent to the date of the appellate order was not proper and effective.

The Commissioner(Appeals) already decided the appeals on 1-8-1984 and, therefore, the original order of the Income Tax Officer got merged with that of the appellate order. Therefore, the order passed by the Income Tax Officer reopening the assessment made under section 144 subsequent to the date of appellate order was not proper and therefore ineffective. Besides, section 146 gives right of objection to the assessee on various grounds. Again, section 246 also gives a right of appeal against the assessment completed under section 144. Both these rights can be availed of by the assessee simultaneously as there is no provision in law prohibiting such exercise of right. Therfore, if one of the two authorities of the Income Tax Department decides the matter on an application or appeal before it, by implication in absence of special circumstances regarding prohibition of such course, the right exercised before the other authority is no longer surviving.

Per Shri P. J. Goradia, Accountant Member - Against the order passed by the Commissioner (Appeals) in his appeal No. CIT/R/169/1984-85 the grounds taken are as under : 1. The learned Commissioner (Appeals) has erred in law and on facts in allowing the appeal filed against order under section 144 of the Income-tax Act, 1961 (the Act), without knowing the outcome of the application under section 146 of the Act filed by the assessee.

2. On the facts of the case, the Commissioner (Appeals) ought to have upheld the order of the Income-tax Officer.

3. It is, therefore, prayed that the order of the Commissioner (Appeals) may be set aside and that of the Income-tax Officer be restored to the above extent.

2. At the time of hearing, the learned departmental representative submitted a copy of the order passed by ITO on 10-8-1984 under section 146 consequent to application dated 8-5-1984 filed with the department on 17-5-1984 requesting for reopening of the assessment. It was pleaded that since the assessment was reopened the order of the Commissioner (Appeals) is required to be set aside.

3. The learned counsel for the assessee submitted that the order passed by the Commissioner (Appeals) is dated 1-8-1984 and that passed by the ITO reopening the assessment under section 146 is dated 10-8-1984.

Therefore, the original order of the ITO was merged with the order passed by the Commissioner (Appeals) on 1-8-1984 and, therefore, the ITOs order dated 10-8-1984 reopening the assessment was not a legal order.

4. We have considered the submissions and have gone through the relevant materials placed before us. In our opinion, the stand taken by the learned counsel for the assessee is required to be upheld. The appeal before the Commissioner (Appeals) was instituted on 5-5-1984 and hearing was made on 30-7-1984 and, therefore, the ITO was seized of the facts and, therefore, should have objected to before the Commissioner (Appeals) in deciding the matter. Since this is not done, it cannot be said that the Commissioner (Appeals) was in error in deciding the appeal. The Commissioner (Appeals) already decided the appeals on 1-8-1984 and, therefore, the original order of the ITO got merged with that of the appellate order and, therefore, the order passed by the ITO reopening the assessment made under section 144 subsequent to the date of the appellate order was not proper and, therefore, ineffective.

4.1 Besides, section 146 gives right of objection to the assessee on various grounds. Again, section 246 of the Act also gives a right of appeal against the assessment completed under section 144. Both these rights can be availed of by the assessee simultaneously as no provision in law prohibiting such exercise of right is brought to our notice.

Therefore, if one of the two authorities of the Income-tax Department decides the matter on an application or appeal before it, by implication in absence of special circumstances regarding prohibition of such course, the right exercised before the other authority is no longer surviving. Moreover, in this case it is the first appellate authority which is the superior authority to the ITO that has decided the appeal and, therefore, no useful purpose would be served even if the same is decided first by the ITO and thereafter again by the first appellate authority. It is not the case of the revenue that the Commissioner (Appeals) has not applied the correct law after appreciating the facts of the case because no submissions were made in this behalf. Therefore, we do not find any reason to set aside the order passed by the Commissioner (Appeals).


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