TMI Blog2014 (3) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee since the PAN had been transferred to the aforesaid ITO at New Delhi. Admittedly, these facts were not disclosed to the assessee nor was the assessee given any opportunity to controvert the material. The Assessing Officer has acted in haste by passing an order without notice to the assessee and in clear breach of the principles of natural justice. Even if we treat the impugned order of the Assessing Officer dated 24 February 2014 as an order under Section 143 (3), it is clear that there has been a violation of the principles of natural justice and it would not be necessary to relegate the assessee to an appeal under Section 246. On the other hand, if the order is treated as an order under Section 251, which is the provision wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been returned unserved and the assessee could not produce the said two entities before the Assessing Officer. Consequently, the CIT (A) issued the following directions: ...the AO is directed to conduct enquiry with the AO having jurisdiction over the PAN of this party and ascertain whether return of income had been filed for the relevant year by this party and if so, he had disclosed turnover of business in such return, in excess of the amount of purchases, shown by the assessee as having made from the said party. If the result of such verification is negative, the addition is confirmed. Otherwise, the AO is directed to delete the addition. Against the order passed by the CIT (A) on 28 March 2013, the assessee filed a writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed an order on 24 February 2014 barely within three days without hearing the assessee or disclosing the contents of the communication which he had received from the ITO at New Delhi. At the outset, it must be noted that Section 251 provides for the power of the Commissioner (Appeals) while disposing of an appeal. Section 251 does not define the power of the Assessing Officer. Hence, ex facie, the Assessing Officer assumed jurisdiction under a provision which was clearly not attracted. Be that as it may, even if it is held that the Assessing Officer had merely referred to a wrong provision of law and was passing an order to give effect to the order of the CIT (A), he had to do so by passing an order of assessment under Section 143 (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the other hand, if the order is treated as an order under Section 251, which is the provision which was invoked by the Assessing Officer, the order would be clearly without jurisdiction and would not be subject to an appeal under Section 246. Hence, in either view of the matter, the impugned order dated 24 February 2014 is unsustainable. We, accordingly, allow the petition and set aside the impugned order dated 24 February 2014 (Annexure-6). We however, clarify that this shall not preclude the Assessing Officer from passing a fresh order in accordance with law after due notice to the assessee and in compliance with the principles of natural justice. The assessee is directed to file a certified copy of this order within one week of it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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