TMI Blog2011 (1) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal under section 260A of the Act before High Court would exclude the applicability of the proviso - Section 254(4) specifically provides that finality of order of the Tribunal is subject to appeal under section 260A of the Act - Hence, answer the questions raised in favour of the revenue and against the assessee. - ITA No.57 of 2005 - - - Dated:- 27-1-2011 - MR JUSTICE ADARSH KUMAR GOEL, MR. JUSTICE AJAY KUMAR MITTAL, JJ. Mr. Yogesh Putney, Sr.Standing Counsel, Mr. Krishan K.Mehta, Advocate for the revenue. Mr. Pankaj Jain, Mr. D.K.Goyal, Mr. Permil K.Goel, Mr. Avneesh Jhingan, Advocate for the respondents in all the cases. Adarsh Kumar Goel, J. 1. This order will dispose of ITA Nos. 316, 368, 370 of 2004, 57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing opportunity of being heard to the assessee, such report could be taken into account. However, Proviso to the said provision is as under:- Provided that nothing contained in this section shall apply in respect of an assessment made on or before 30th Sept.2004, and where such assessment has become final and conclusive on or before that date, except in cases where a reassessment is required to be made in accordance with the provisions of section 153A. 4. Under the proviso, applicability of the provision was excluded to assessments made on or before September 30, 2004 which had become final and conclusive except where reassessment was required to be made as per section 153A. In the appeal, following substantial questions of law ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d exclude the applicability of the proviso. Appeal was continuation of assessment proceedings as held in Garikapati v. Subbiah Choudhry, AIR 1957 SC 540, Siemens India Limited v. State of Maharashtra (1986) 62 STC 40 (Bom) and CIT v. Bengal Card Board Industries and Printers(P) Limited, (1989) 176 ITR 193 (Cal). 6. Learned counsel for the assessee submits that proviso was applicable as pendency of appeal in this court did not affect the finality of proceedings as appeal to this Court was only on a substantial question of law which should be seen independently of the amending provision. Reliance has been placed on following judgments:- i) CIT v. Smt.Shashi Agarwal, (2007) 210 CTR (All) 205; ii) CIT v. Sudhish Kumar, (2005) 276 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 260A of the Act will not affect finality of the assessment as appeal under Section 260A was only on a substantial question of law and was not continuation of assessment proceedings. We respectfully disagree with the said view and agree with the view taken by the Madhya Pradesh High Court holding that appeal under section 260A is also continuation of proceedings. As already observed, Section 254(4) specifically provides that finality of order of the Tribunal is subject to appeal under section 260A of the Act. 9. In view of above, we answer the questions raised in favour of the revenue and against the assessee. 10. Since the Tribunal has not considered the merits of the valuation report, the matters are remitted to the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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