TMI Blog1985 (8) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner as an order and the aforesaid order of the ITO filing the proceedings was found to be erroneous and prejudicial to the interests of the revenue by the Commissioner for the following reasons: "The assessment for the assessment year 1977-78 was completed by the ITO on 30-9-1980 under section 144. The assessee applied for reopening of the said assessment under section 146. The ITO reopened the assessment vide his order dated 12-1-1981 under section 146. The reopened proceedings under section 146 was filed by the ITO on 31-3-1983. Failure on the part of the ITO to take the proceedings in accordance with the provisions of section 143 of the Income-tax Act, rendered his order of filing the proceedings erroneous and prejudicial to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The learned counsel for the assessee reiterated the contentions made before the Commissioner. He further contended before us that mere order sheet entry made by the ITO dated 31-3-1983 cannot be treated as an assessment order passed by the ITO as the assessment records were not before him to apply his mind to the return of income filed by the assessee. He took support from the same decision, namely, the decision relied upon by the Commissioner in Damyanti Mehta and Yash Raj Mehta's case in support of his case and contended that since the ITO has not applied his mind, the filing of proceedings by the ITO cannot be treated as an order and since the same is not an order, the Commissioner cannot exercise jurisdiction under section 263. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to certain circumstances and as such there was no sale. This objection was accepted by the Income-tax Officer and he dropped the proceedings by his order 'proceedings filed' made on February 28, 1963. The Commissioner of Income-tax acted under section 33B and cancelled the order of the Income-tax Officer filing the proceedings and directed him to continue the proceedings under section 34(1)(a). On appeal against this order, the Appellate Tribunal held that the order of the Income-tax Officer filing the proceedings amounted to an order of assessment or reassessment and therefore no proceeding could be instituted under section 33B by the Commissioner. On a reference : Held, that in every case it has to be determined, on the facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee for the notice issued by him that there was no such sale, the ITO dropped the proceedings which he had reopened under section 34(1)(a) by using the words 'proceedings filed'. This order of the ITO was held to be an order of reassessment by their Lordships of the Punjab and Haryana High Court as the ITO has applied his mind before filing the proceedings. Now, coming to the facts of the case under consideration before us, first of all it may be mentioned that the predecessor ITO no doubt reopened the assessment by his order dated 12-1-1981 under section 146, the successor ITO filed the proceedings on the ground that the records are not traceable. This action was taken by the successor ITO in view of the fact that the limitation for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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