Heard learned counsel for the petitioner.
The Commissioner of Income-tax, Jaipur, issued a show-case notice to the assessee, Shri Subeer Singh Tamra, under section 263 of the Income-tax Act, 1961 (hereinafter referred to as 'the Act'), in respect of the assessment years 1977-78 and 1978-79 to show cause why the assessments made by the Income-tax Officer under section 143(1) of the Act for the aforesaid two years may not be reopened on the ground that they were erroneous and were prejudicial to the interests of the Revenue. The assessee did not appear and an ex parte order was passed by the Commissioner of Income-tax on September 10, 1981, setting aside both the assessments and directing the Income-tax Officer to take de novo proceedings from the stage of the return after making the necessary inquiry.
The assessee filed an appeal before the Income-tax Appellate Tribunal Jaipur Bench, Jaipur. The Tribunal although held that the notice issued by the commissioner under section 263 of the Act was validly served by affixation upon the assessee, yet proceeded to set aside the order passed by the Commissioner dated September 10, 1981, and remanded the matter to him with a direction that he should record a finding on the question as to whether the Income-tax Officer was competent to make a fresh inquiry into the matter, as the earlier order of assessment was passed under section 143(1) of the Act.
Learned counsel for he assessee submits that the order of remand passed by the Income-tax Appellate Tribunal dated March 10, 1983, was not justified and the Tribunal should be directed to state four questions arising out of the order of the Tribunal to this court, one of which relates to the jurisdiction of the Commissioner under section 263 of the Act.
We are unable to appreciate the argument advanced by learned counsel for the assessee. When the matter has been remanded by the Income-tax Appellate Tribunal to the Commissioner for fresh consideration and decision, it would be open to the assessee to raise the question before the Commissioner of Income-tax as to whether proceedings under section 263 of the Act were competent in the matter. So far as the question as to whether a fresh inquiry could be made by the assessing authority when the earlier assessment order was passed under section 143(1) of the Act, the matter has already been remanded by the Tribunal of the Commissioner and we do not consider that at this stage, this court should interfere and direct the Tribunal to state the case and refer any such question to this court as are sought to be raised by the assessee. It would be open to the assessee to raise all questions before the Commissioner of Income-tax and after the Commissioner decides the questions, if the assessee proposes to raise any other question, the matter can be taken up before the Income-tax Appellate Tribunal in appeal against the order that may be passed by the Commissioner, if the assessee may feel aggrieved against that order. At this stage, we do not think that there is any justification for this court to call for a reference. It may be noted that the question of sufficiency of service, which is sought to be raised does not survive in the context of the order passed by the Tribunal remanding the matter to the Commissioner in spite of its finding that the service was properly effected upon the assessee on the show case notice issued under section 263 of the Act. When once the matter has been remanded to the Commissioner, the validity of the proceedings under section 263 of the Act can be questioned before him and as the entire matter has been thrown open, the question of sufficiency of service or otherwise is of no importance.
In the circumstances, we find no reason to call for a reference. The application under section 256(2) of the Act is dismissed.