9911796707
TMI Blog2015 (5) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... 1398/Hyd/1995 for the assessment year 1985-86. By this order, the Tribunal dismissed the appeal filed by the assessee against the order dated 10.05.1995 passed by the Deputy Commissioner of Income Tax (Appeals) (DCIT). The substantial question that falls for consideration in the instant appeal reads thus: Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in law in holding that prior approval of Deputy Commissioner for issue of notice under Section 143 (2) was not required? The facts leading to this appeal, to the extent they are necessary, are as under: The assessee-HUF sold the property situated at Parbhani for a total consideration of Rs. 1,35,500/-. He incurred an expenditure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) upheld the order of assessment. The Tribunal dismissed the appeal preferred by the assessee by order dated 13.06.2001. In this backdrop, the aforementioned question has been raised by the appellant based on the provisions of Section 143 of the Act, as it stood at the relevant time. It is not in dispute that after setting aside the assessment made under Section 143 (1) of the Act, by the Commissioner in exercise of his powers under Section 263 of the Act, the Assessing Officer made fresh assessment under Section 143 (3) of the Act. The Assessing Officer had, accordingly, issued a notice under sub-section (2) of Section 143 of the Act to the assessee. Further, it is not in dispute that while issuing the notice, previous approval of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment, or (b) whether or not an assessment has been made under sub-section (1), the Assessing Officer considers it necessary or expedient to verify the correctness and completeness of the return by requiring the presence of the assessee or the production of evidence in this behalf, the Assessing Officer shall serve on the assessee a notice requiring him, on the date to be therein specified, either to attend at the Assessing Officers office or to produce, or to cause to be there produced, any evidence on which the assessee may rely in support of the return: Provided that, in a case where an assessment has been made under sub-section (1), the notice under this sub-section except where such notice is in pursuance of an application by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the first proviso to sub-section (2) are in a case where the assessment has been made under sub-section (1). A bare reading of this expression would show that where the Assessing Officer has made assessment under sub-section (1) and he chooses to make reassessment under sub-section (3), he has no powers to issue notice, unless the previous approval of the Inspecting Assistant Commissioner is obtained. The words Inspecting Assistant Commissioner in the first proviso were substituted by Deputy Commissioner by Act 4 of 1988, Section 2, w.e.f. 01.04.1988. The question is, where the assessment made under sub-section (1) of Section 143 of the Act is set aside by the revisional authority under Section 263 of the Act, whether the previous approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial to the interests of the revenue, he may, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or canceling the assessment and directing a fresh assessment. Thus, he has options, viz., to pass such order as the circumstances of the case justify or an order enhancing the assessment or modifying the assessment or canceling the assessment and in the event of canceling the assessment, he has power to issue a direction for fresh assessment. In the present case, the Commissioner cancelled the assessment and directed fresh assessment. It is well settled that once an assessment is re-opened by virtue of the order passed by CIT under Section 263 of the Act, the initial order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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