TMI Blog2007 (11) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 23, 2001, raising the following substantial questions of law: "(1) Whether the single member of the Tribunal had jurisdiction to decide the appeal, when the subject-matter of the appeal was exceeding Rs.5,00,000 ? (2) Whether the Tribunal was justified in reversing the findings of the Appellate Commissioner when the assessee failed to discharge the burden of proof as required under section 68 of the Income-tax Act ?" 2 The assessee is a manufacturer of edible oil. For the assessment year1996-97, the assessee filed a return of income on January 17, 1996, declaring an income Rs.8,660. The same was processed under section 143(1)(a) of the Income-tax Act. Thereafter, the matter was taken up for scrutiny. After scrutinizing the accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal was more than Rs. 5,00,000 a single member of the Tribunal could not have heard and disposed of the appeal on the merits. According to him, the Assessing Officer had passed an order computing the income of the assessee at Rs. 2,27,614. On an appeal filed by the assessee, the Commissioner of Income-tax (Appeals) exercising his powers under section 251(2) of the Act had enhanced the tax payable by the assessee and enhanced the same to Rs. 13,89,795, Therefore, a learned member of the Tribunal should not have heard and disposed of the appeal when he had no power to adjudicate the appeal which exceeded Rs. 5,00,000. In the circumstances he requests the court to allow the appeal and set aside the order passed by the Tribunal and remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l had jurisdiction to adjudicate the appeal on the merits, was the computation of income by the Assessing Officer. In the circumstances, he requests this court to reject the contention urged by the Revenue. 8. In regard to point No. 2, Sri Parthasarathi contends that the Tribunal has given its finding that before the Commissioner (Appeals) the assessee was willing to let in oral evidence to prove the loan raised by it from various agriculturists. Though such a statement was available in the records, the Commissioner (Appeals) contrary to the documentary evidence had given a finding to the effect that the assessee was not willing to prove the burden cast upon him under section 68 of the Income-tax Act. The Tribunal having found that the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tot income as computed by the Assessing Officer in the case does not exceed (five hundred thousand rupees) and the President may, for the disposal of any particular case, constitute a Special Bench consisting of three or more members, one of whom shall necessarily be a judicial member and one an accountant member." 11 In sub-section (3) of section 255, the word used is total income as computed by the Assessing Officer in the case does not exceed five hundred thousand rupees. By considering the words "Assessing Officer", we have to consider whether the order passed by the Commissioner (Appeals) has to be construed as an order passed by the Assessing Officer or by an appellate authority. The words "Assessing Officer" are defined under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds, "Assessing Officer" are used in section 255, we cannot hold the orders of the appellate authority as an order of the Assessing Officer. In the circumstances, point No. 1 has to be held against the Revenue. Accordingly, we answer question No. 1 against the Revenue and we hold that a single member of the Tribunal can exercise his power if the income computed by the Assessing Officer is less than Rs. 5,00,000 even though the same has been enhanced by the Commissioner (Appeals) in excess of Rs. 5,00,000. 14. In regard to question No. 2 is concerned, the Tribunal has given a categorical finding that the assessee was willing to examine the creditors as its witnesses to prove that it has availed of the loan from them and even though such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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