2009 (9) TMI 524

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..... essing Officer should not be less than the income returned', was an apparent mistake and could be rectified through a miscellaneous application? (ii) Whether the Income-tax Appellate Tribunal was right in issuing a fresh direction to the effect that ` the assessed income should not be more than Rs. 1.4 crore, for the assessment year 1993-94, while completing the assessment' as it is totally against the law, particularly when the direction has been issued in a miscellaneous application even though there was no such point in issue during the original appellate proceedings? (iii) Whether the Income-tax Appellate Tribunal was right in law in directing the Assessing Officer to reassess the income of the assessee which should not be more than i .....

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..... ively. 3. These assessments were challenged before the Commissioner, Income-tax (Appeals), Shimla, who confirmed the action of the Assessing Officer. The assessee then filed appeals before the Income-tax Appellate Tribunal (ITAT), Chandigarh. The assessee gave an explanation that since the auditors were not appointed by the CAG, the audited accounts could not be filed. This explanation was accepted by the Income-tax Appellate Tribunal and it held that since the Assessing Officer had not gone through the audited accounts, the assessment order was liable to be set aside. The matter was remanded to the Assessing Officer to frame afresh assessment keeping in view the audited accounts now submitted by the assessee. This order itself makes it cl .....

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..... er to frame the assessment afresh on the basis of the audited accounts. The Income-tax Appellate Tribunal, however, had no jurisdiction, whatsoever, to have further given a direction that the income of the assessee could not be assessed at less than the amount of income returned by it in the returns which were treated to be "non est"  by the Assessing Officer. Once the returns were treated to be "non est" then it meant that they were non-existent in the eyes of law. Such a return which is "non est" cannot be used even against the assessee. Furthermore, when the Tribunal was directing de novo framing of the assessment, then it obviously meant that the assessment had to be framed afresh keeping in view the audited accounts which were now .....

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