TMI Blog2013 (3) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... ch case has to be considered on its own facts. Following the decision of Apex Court [1996 (12) TMI 7 - SUPREME COURT] held that:- we do not find any reason to interfere with the Tribunal's ultimate conclusion in allowing the assessee's appeal. Though some of the observations may not appeal to us, nevertheless, for the reasons somewhat different from those recorded by the Tribunal we come to the same conclusion. Decision of apex court in CIT v. Shelly Products & others [2003 (5) TMI 4 - SUPREME COURT] distinguished wherein it was held that, assessee's assessed income cannot be less that the return income. Decided in favor of assessee. - TAX APPEAL No. 1022 of 2010 - - - Dated:- 24-1-2012 - MR. AKIL KURESHI AND MS SONIA GOKANI JJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed that there was an error in previous computation of income pursuant to CIT(Appeals) order. He also carried out certain fresh computation and came to the conclusion that by granting all the deductions provided by CIT(Appeals), the income of the assessee for the year under consideration would be nil. However, since he was of the opinion that by virtue of decision of the Apex Court in case of CIT v. Shelly Products others reported in 261 ITR 367 and CBDT's circular No.549 dated 31.10.1989, assessee's assessed income cannot be less that the return income. He therefore, revised the total income of the assessee at Rs. 22.08 lakhs. Assessee carried the matter in appeal. CIT(Appeals) dismissed the appeal upon which the assessee approached t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal was of the opinion that this was not a case of rectification under Section 154 of the Act since the issue cannot be one, presently any patent or obvious mistake of law or acts which can be rectified. Tribunal therefore, recorded that the Assessing Officer is not justified in having recourse to Section 154 of the Act in restricting the income determined in consequence of order of the CIT(Appeals). 3. Counsel for the Revenue vehemently contended that the Tribunal erred in holding that order passed in exercise of powers under Section 154 of the Act was bad. He pointed out that it was application of assessee which was entertained by the Assessing Officer. Tribunal therefore, misdirected itself while allowing assessee's appeal. He f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT (1991) 187 ITR 688, this Court, while dealing with the powers of the Appellate Assistant Commissioner observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of the assessment passed by the Income-tax Officer. This Court f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that liability to pay income tax does not depend on assessment being made and failure or inability to frame fresh assessment after earlier assessment is set aside or nullified in appropriate proceedings, does not disentitle the assessee to claim refund of the advance tax and tax paid on self-assessment because to that extent the assessee has admitted his liability to pay tax in accordance with law. Facts of the present case are therefore, different. In case of hand, the assessment was not rendered null. In fact such assessment, which according to the order of CIT(Appeals) had became final tax liability of the assessee, came lower than that declared by him in the return filed. 8. In view of above observations, we do not find any reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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