TMI Blog1994 (9) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... , disallowed the claim for certain deductions to the return figure of the estate and fixed the principal value at Rs. 9,13,692 in his order of assessment dated January 31, 1974. The accountable person filed an appeal before the Appellate Controller against the disallowance of the claim for deduction. The appellate authority, by order dated August 18, 1975, cancelled the assessment in view of certain materials filed by the accountable person and directed the respondent to redo the assessment in accordance with law. Consequently, by an assessment order dated December 18, 1975, the respondent fixed the principal value of the estate at Rs. 4,42,635. However, the respondent included in the estate of the deceased the value of the site measuring 40 cents in Thanjavur together with a mosque under construction, which was dedicated by the deceased on July 3, 1970. According to the respondent, there was no evidence of any dedication in the mosque during the life time of the deceased and, therefore, he included the value of the said property and the building materials holding that the deceased continued to be the owner of the property. The accountable person preferred an appeal to the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposal was made so that appropriate steps could be taken for furnishing necessary details called for in the notice. Thereupon on May 30, 1985, the respondent sent another letter to the petitioner's mother wherein it was stated that the original assessment was completed as early as on January 31, 1974, and fresh assessment was made on December 18, 1975, consequent to the remand by the Appellate Controller. The respondent, however, claimed that the contention of the accountable person that the proposed reassessment was barred by limitation was erroneous and that the assessment is one falling under section 58 of the Act and, therefore, there was no period of limitation therefor. The authorised representative of the accountable person prayed for certain time before the respondent for moving the Controller of the Estate Duty to interfere and give appropriate direction. The authorised representative also appeared before the Commissioner of Income-tax on October 4, 1975, for discussion in this matter consequent on which he filed the copy of the order of the Appellate Controller of Estate Duty dated August 27, 1976, and the order of the Tribunal dated December 30, 1977, and drew the att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould have challenged the same by an appeal before the Tribunal. Having not done so, it is not open to the respondent to reopen the assessment with regard to the said matter. Learned counsel for the respondent invites my attention to the judgment of this court in CIT v. Seth Manicklal Fomra [1975] 99 ITR 470. The Division Bench held that once the order of assessment is set aside and the matter comes up for fresh assessment before the officer, his powers will have to be decided with reference to the provisions of section 143(3) of the Income-tax Act and not with reference to any observations made by the Appellate Assistant Commissioner in his order or with reference to the scope of the appeal before the Appellate Assistant Commissioner. It is seen from the facts of the case that the order of the Appellate Assistant Commissioner did not contain any restriction as such. After having found that there was no restriction in the order of remand, the Bench proceeded to consider whether there could be such a restriction by the Appellate Assistant Commissioner in his order of remand. The Bench expressed the opinion that there could not be any such restriction when an order of remand is mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken by this court in Sri Gajalakshmi Ginning Factory Ltd. v. CIT [1952] 22 ITR 502. In that case, the assessee-company purchased a ginning factory with certain lands appurtenant thereto and also a plot containing some fruit stalls. In one of the subsequent accounting years, the assessee sold some portion of the land and also the fruit stalls and realised a profit of Rs. 9,397 from the sale of the land, and Rs. 3,800 from the sale of the fruit stalls. The Income-tax Officer treated the sum of Rs. 9,397 as capital receipt and assessed the sum of Rs. 3,800 under the head of business. The assessee appealed against that portion of the assessment order treating the sum of Rs. 3,800 as income from business, but the Appellate Assistant Commissioner upheld the order of the Income-tax Officer, but reduced the amount to Rs. 2,800. The assessee filed a further appeal to the Income-tax Appellate Tribunal. The Tribunal considered that there was not enough material to distinguish a sum of Rs. 3,800 received from the sale of fruit stalls from the amount of Rs. 9,397 which was treated as capital asset by the Income-tax Officer and in that view remitted the matter to the Appellate Assistant Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manded the proceedings for a fresh assessment under section 31 of the Indian Income-tax Act, 1922. It was held that though the Income-tax Officer, while making a fresh assessment in compliance with the Appellate Assistant Commissioner's directions, was bound by the directions given, subject to carrying out those directions, he has the same powers as he had originally when making the assessment order under section 23. It is not in dispute in our case that the direction of the Appellate Assistant Commissioner in regard to the consideration of the circumstances pointed out by him in the assessment of the income from business in sugar was carried out by the Income-tax Officer. Therefore, the Income-tax Officer had all the powers he had originally when making the assessment order under section 143(3). This decision in J. K. Cotton Spg. and Wvg. Mills Co. Ltd. v. CIT [1963] 47 ITR 906 (All) was followed in a later decision of the same High Court in Abhai Ram Gopi Nath v. CIT [1971] 79 ITR 339. Though these decisions were rendered under the provisions of the Indian Income-tax Act, 1922, the provisions of the Income-tax Act, 1961, are in pari materia with the provisions of the Indian Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... implementing the order of the Tribunal, it is a fresh assessment as directed by the Tribunal. There may not be any period of limitation for that purpose as contended by him. But that will be confined only to the issue which was directed to be considered by the Tribunal. But with reference to the other matters, which are reopened by the respondent on his own without a direction from the Tribunal, they will be governed only by section 59 and consequently by section 73A. In order to get over the period of limitation, learned counsel for the respondent contends that a notice was issued within the prescribed period of limitation, before 1978. He places reliance on a communication in No. S. 704/TNJ, dated May 30, 1985, by the respondent to the accountable person. In the first paragraph, it is stated that a notice under section 59 was issued and served on her within three years from the date of assessment made on December 18, 1975. It is contended by learned counsel that in her reply to the said communication sent on behalf of the accountable person, there is no denial of the factual statement referred to above. In the reply dated June 26, 1985, what is stated is as follows : " Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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