ORDER, VALIDITY OF–Cancellation of appellate order by rectification.
Ratio :
Disposal of appeal during pendency of petition under section 146 is not justified.
Facts :
The assessment was made ex parte. The assessee filed a petition under section 146 within the prescribed time. The same was, however, addressed by mistake to an Income Tax Officer of wrong circle. The mistake was rectified as soon as it was pointed out. The petition filed by the assessee under section 146 thus remained pending. The Appellate Assistant Commissioner yet disposed of the appeal against the quantum assessment.
Held :
Appellate Assistant Commissioner was not justified as disposal of appeal while petition under section 146 is pending is contrary to the scheme of the Act as well as the Board’s circular on the point.
Application :
Section 146 stands omitted with effect from 1-4-1989.
Income Tax Act 1961 s.146
Income Tax Act 1961 s.246
Appeal (AAC)–MAINTAINABILITY OF APPEAL AGAINST–Best judgment assessment.
Ratio :
No appeal is maintainable for assessment under section 144 during the pendency of application under section 146.
Held :
Best judgment assessment was completed under section 144. An application under section 146 was filed by the assessee for cancellation thereof. No order was, however, passed by the Income Tax Officer in respect of that application. The Appellate Assistant Commissioner, in the meanwhile, held on the assessee’s appeal against assessment order that the assessment under section 144 was justified. He was, however, clearly in error, as it was not open to him to consider and adjudicate upon whether assessment was properly made under section 144 which could be considered only in an order under s. 146 against which a separate appeal is provided.
Application :
Section 146 stands omitted with effect from 1-4-1989.
Income Tax Act 1961 s.144
Income Tax Act 1961 s.146
Income Tax Act 1961 s.246
