TMI Blog1997 (4) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. Since the CIT has only set aside the assessment for de novo consideration of the aforesaid items, we do not find any merit in the grievance of the assessee. 3. The appeal is dismissed. Per Shri R. Acharya, A.M. - I wish to record my respectful dissent, as I disagree with the conclusive decision reached by my learned brother. The assessee has raised the following grounds:--- "1. For that the learned CIT has erred in passing ex parte order under section 263 of I.T. Act, 1961. The appellant does not receive show-cause notice from the Commissioner Office though it was sent by registered post nor it has been returned back to the office. So it does not mean that Notice has been served on him. 2. For that it should be appreciated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For that it will be appreciated that the Government has deducted Sales Tax, which ought to have been allowed and it has correctly been allowed by the learned ITO. So the learned CIT is wrong in cancelling the assessment without being heard of the appellant on this point. 8. For that the learned CIT has failed to appreciate that the Royalty and cess has also been allowed in earlier years so this is also not the ground for cancelling the assessment under section 263 of Income-tax Act, 1961. 9. For that the order under section 263 is otherwise is bad in fact and law and fit to be cancelled. 10. For that other ground, if any, shall be urged at the time of hearing." Original notice issued by Tribunal is returned unserved and revised not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale tax amounted to Rs. 1,06,898 from the bill for the first time which the appellant has claimed and has been allowed by the ITO. It is found that no doubt the CIT has mentioned the deduction of Rs. 1,06,898 but nowhere in his order he has mentioned that it is deduction on account of sale tax. In the ground of appeal it is also mentioned that the contractor Association is fighting on this point and the matter is now pending before the Supreme Court which has stayed the proceeding and now sale tax is not deducted from the bill. In view of above submissions and contentions raised in the grounds of appeal the assessee has requested in ground No. 9 that the order under section 263 is otherwise bad in fact and in law and fit to be cancelled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 263(1) afresh after giving reasonable opportunity to the assessee. 5. In the result, the appeal is treated as allowed for statistical purposes. ORDER UNDER SECTION 255(4) OF THE INCOME-TAX ACT, 1961 In view of the difference of opinion, the following question is referred to the Hon'ble President, Income-tax Appellate Tribunal for reference to the Third Member as per the aforesaid section : "Whether, on the facts and in the circumstances of the case the appeal filed against setting aside of the assessment order under section 263 by the CIT is to be decided on merit or not by the Tribunal and whether on the facts and in the circumstances of the case there is any merit in the grounds of appeal ?" THIRD MEMBER ORDER 1. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When the matter was fixed up for hearing on 3-3-1994, there was no compliance from the assessee. The Tribunal, therefore, heard the appeal ex parte and passed the order. The Judicial Member dictated the order confirming the order of the Commissioner on the reasoning that the assessment was only set aside for de novo consideration of the aforesaid items. It was held by him that there was no merit in the grievance of the assessee. On the other hand, the learned Accountant Member held that it was a case for restoring the same to the file of the Commissioner for giving reasonable opportunity to the assessee. The Bench, therefore, referred the following question to the Hon'ble President for consideration by the Third Member which was allotted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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