TMI Blog1989 (9) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 146 of the Income-tax Act, 1961, that the assessee could urge that he had complied with the notice under section 142(1) of the Act and, therefore, the assessment was rightly made under section 144 of the Act ? " The factual matrix relevant for the disposal of this reference may be stated thus : The assessee is an individual who was carrying on business as broker. The controversy pertains to the assessment year 1977-78. The relevant accounting year ended on March 31, 1977. On the basis of some information, the residential premises of the assessee as well as the business premises of the firm in which the assessee was interested were raided under section 132 of the Act on August 31, 1976. Some books of account and documents foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to the Inspecting Assistant Commissioner under section 144B of the Act. Accordingly, the assessment was set aside. Both the Revenue and the assessee appealed to the Tribunal against the said order of the Commissioner of Income-tax (Appeals). The Tribunal accepted the Revenue's contentions that the assessment was rightly made by the Income-tax Officer under section 144 of the Act on the failure of the assessee to produce the bank pass books and bank accounts and that the order of the Commissioner that the assessment falls under section 143(3) of the Act was not justifiable. The Tribunal also held that the assessee not having filed any application for reopening the assessment under section 146 of the Act, the Commissioner could not go in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that he had not a reasonable opportunity to comply, or was prevented by sufficient cause from complying, with the terms of any notice referred to in clause (ii), the Income-tax Officer shall, if satisfied about the existence of such ground, cancel the assessment and proceed to make a fresh assessment in accordance with the provisions of section 143 or section 144. (2) Every application made under sub-section (1) shall be disposed of within ninety days from the date of receipt thereof by the Income-tax Officer : Provided that in computing the period of ninety days aforesaid, any delay in disposing of the application which is attributable to the assessee shall be excluded." From the statement of facts framed by the Tribunal, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Act or any order of assessment under subsection (3) of 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 ; (d) an order under section 146 refusing to reopen an assessment made under section 144." A bare perusal of clause (c) above leaves no doubt that the scope of appeal against any order passed under section 144 of the Act is limited, as the assessee can object 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, but there are no such limitations in an appeal filed under clause (d) ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bombay High Court in Gaurishanker Kedia v. CIT [1963] 49 ITR 655, had also taken a similar view under the relevant provisions of the Indian Income-tax Act, 1922. It was held that the assessee not having resorted to the provisions of section 27 of the 1922 Act against an order passed on the basis of the best judgment assessment made under section 23(4) of the 1922 Act, could not challenge the validity of the notice under section 34 (1) of that Act in appeal. A Division Bench of the Andhra Pradesh High Court in H. S. Imam v. CIT [1988] 171 ITR 214, had also taken a similar view by holding that, in an appeal against the order of assessment made under section 144 of the Act, it is not open to an assessee to raise grounds concerning th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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