ORDER
T.V.K. Natarajachandran, Accountant Member
1. These appeals by the revenue are consolidated and disposed of by a common order for the sake of convenience as they relate to Mujawar Group and involve common issue. The appeals pertain to assessment years 1985-86 to 1988-89, in each case and arise out of similar but separate consolidated orders of the Deputy Commissioner of Income-tax (Appeals), Belgaum Range, Belgaum, dated 11-9-1991. The revenue has taken several grounds to urge that the DCIT (A) erred in his decision and, inter alia, he has erred in entertaining the appeals which did not fall within his jurisdiction. The common ground (No. 3) taken by the revenue reads as under:
The DCIT (A) ought, to have considered the fact that (a) the assessee is partner in M/s. Mujawar and Co., wherein search & seizure under Section 132 had taken place and the assessments of the firm and the partners were completed under Section 143(3) r.w.s. 144A under the directions of DCIT, Belgaum. In view of this, any appeal should lie before the CIT (A) as provided under Section 246(2) (c) of the Act and not with the DCIT (A). Hence the DCIT (A) erred in entertaining the appeal in this case which did not fall in his jurisdiction.
Therefore, the aforesaid common issue is required to be decided first and foremost to see whether the DCIT (A) is competent to entertain the appeals and decide the same.
2. The assessees are partners in M/s. Mujawar & Co., Belgaum, besides being partners in other concerns. As a result of seizure of incriminating materials at the time of search conducted in the business premises of the firm and partners, escapement of income by way of unexplained investment was detected. Consequently assessments for assessment years 1985-86, 1986-87, 1987-88 and 1988-89 were made under Section 143(3) read with Section 147 after getting directions from the Deputy Commissioner under Section 144A of the Income-tax Act, 1961.
3. The DCIT (A) entertained the appeals filed by the assessees and disposed of the appeals or merits of the case. The appellate orders of the DCIT (A) and the assessment orders bear ample evidence to the fact that the assessments were completed by the Assistant Commissioner only after obtaining the directions under Section 144A from the DC. It is for this specific reason the common ground (No. 3) impugning the validity of the jurisdiction of the DCIT (A) has been taken by the revenue.
4. At the time of hearing none appeared on behalf of the respondents (assessees). Therefore, the appeals were decided after hearing the submissions of the learned departmental representative. The learned departmental representative relied on the common ground taken by the revenue and vehemently supported the same.
5. After due consideration I am of the opinion that the common ground No. 3 taken by the revenue in these appeals is well founded and has great deal of force. Clause (c) of Sub-section (2) of Section 246 reads as under:
an order of assessment made after the 30th day of September, 1984, on the basis of the directions issued by the Deputy Commissioner under Section 144A;
Sub-section (2) of Section 246 contains non-obstantive clause, namely, “Notwithstanding anything contained in Sub-section (1)” and the sub-section enumerates the various orders, whether made before or after 10th July 1978, which is the appointed day, where the appeal is to be filed to the CIT (A) only. The rationale of this provision is not far to seek. Sub-section (2) also contains other orders passed by the DC which are made specifically appealable to CIT (A). The directions given by the DC are binding on the Assessing Officer and, therefore, form part of the assessment order. Therefore, the appeal against such order passed by the Assessing Officer, as a result of the directions given by the DC, are appealable only to the CIT (A) and not to DCIT (A). Even Sub-section (1) of Section 246 provides that subject to Sub-section (2) any assessee aggrieved by any of the following orders of an Assessing Officer other than the DC may appeal to the DCIT (A) against such orders. Therefore, it is amply clear that Sub-section (1) is subject to Sub-section (2) and Sub-section (2) contains non-obstantive clause which over-rides Sub-section (1) of Section 246. The learned authors Chaturvedi and Pithisaria, in Income-tax Law, 4th Edn., Vol. 5 at page 5160 have observed that with effect from 1-4-1989 an appeal against an assessment order under Section 143 or Section 144 where the assessee objects to the amount of income assessed or to the amount of tax determined or to the amount of loss computed or to the status under which he is assessed lies to the CIT (A) if the order of assessment is made after 30-9-1984 on the basis of directions issued by the DC under Section 144A.
6. In these circumstances, it is clear that the jurisdiction of appeal in this case does not lie with the DCIT (A) but with the CIT (A) only. Therefore, the DCIT (A) has erroneously assumed jurisdiction and adjudicated the appeals filed before him. Therefore, the orders of the DCIT (A) cannot stand. Consequently the impugned orders of the DCIT (A) are set aside because infirmity of jurisdiction has set in by wrong assumption of the jurisdiction which legally lies with the CIT (A). Therefore, while setting aside the impugned orders of the DCIT (A) I direct that all these appeals should be transferred to the CIT (A) having proper jurisdiction over these appeals so as to enable him to adjudicate the appeals in accordance with law. There is no illegality in the orders passed by the DCIT (A) and those orders would not become ab initio void because there is infirmity in the procedural assumption of jurisdiction and this infirmity could be cured by transferring the appeals to the CIT (A) who is competent to entertain these appeals because the jurisdiction lies with him only.
7. In the result, the appeals are allowed as directed above.