TMI Blog2001 (10) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the case and also in the light of the retrospective amendment to section 148 with effect from April 1, 1989, the Tribunal is right in law in disposing of the appeal in the manner it did?" Subsequent to the notice the respondent has appeared and argued on the above substantial questions of law. For the assessment year 1984-85, the assessing authority completed the assessment under section 143(1) of the Income-tax Act on February 27, 1987. Subsequently, the assessing authority issued a reassessment notice under sec tion 148 of the Act invoking the power under section 147 of the Act. In that notice, the assessing authority called upon the assessee to file a return of income within 30 days. This was against the scheme of section 148 of the Act, as it then stood, since the provision at the relevant time insisted on a notice requiring him to furnish a return within such period "not being less than 30 days". The reassessment was completed on March 30, 1993. Aggrieved by that order, the assessee filed an appeal before the Commissioner of Income-tax (Appeals). By order dated February 7, 1995, the Commissioner of Income-tax accepted the contention of the assessee that the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and dismissed the appeal filed by the assessing authority on the ground that it has become infructuous. It is feeling aggrieved by this decision of the Tribunal that the Commissioner of Income-tax has filed this appeal under section 260A of the Income-tax Act on the substantial questions of law as indicated above. Learned counsel for the Revenue submitted with reference to the decision of the Federal Court in Raja Bahadur Kamakshya Narain Singh of Ramgarh v. CIT [1947] 15 ITR 311, the decisions of the Supreme Court in State of Uttar Pradesh v. Raja Syed Mohammad Saadat Ali Khan [1961] 41 ITR 737; Commissioner of Sales Tax v. Bijli Cotton Mills [1964] 15 STC 656; AIR 1964 SC 1594; CIT v. Straw Products Ltd. [1966] 60 ITR 156 ; Kapurchand Shrimal v. CIT [1981] 131 ITR 451 and CIT v. Sun Engineering Works P. Ltd. [1992] 198 ITR 297, that an Appellate Tribunal was bound to take note of an amendment brought about to the law pending the appeal and was bound to dispose of the appeal in the light of that amendment especially when the amendment is given clear retrospective operation. Counsel, therefore, submitted that the Appellate Tribunal was in error in not giving effect to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of reassessment made by the assessing authority on March 30, 1993, is in suspended animation in view of the fact that an appeal against the decision of the Commissioner of Income-tax (Appeals) setting aside that order, was pending before the Tribunal. In other words, the validity or otherwise of the order dated March 30, 1993, would depend upon the final decision to be taken by the Tribunal in the appeal pending before it. Therefore, if the Tribunal were to decide that the order of reassessment dated March 30, 1993, is validly made, the consequence would be that the assessing authority could not have issued yet another notice for reassessment in terms of section 147 of the Act and could not have made a reassessment as reflected by the order dated July 31, 1996. Since it is not disputed that both orders cannot survive and one of them has to fall, on the principle that an order becomes final only when the appeal filed against it is finally decided, it has to be held that the life of the second order dated July 31, 1996, would depend upon the decision of the Income-tax Appellate Tribunal in the appeal pending before it relating to the reassessment order dated March 30, 1993. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontentions raised by the assessee in that appeal. In view of the clear retrospective amendment of section 148 of the Act relating to the notice period, all that the Income-tax Tribunal can do is to set aside the decision of the Commissioner of Income-tax (Appeals) and send down the appeal filed by the assessee before that authority to hear and dispose of it on the merits and on the contentions other than the contention of want of sufficient notice under section 148 of the Act. In that situation, a remand by us of the appeal to the Income-tax Appellate Tribunal would only mean that the parties will have to appear before that Tribunal and that Tribunal will have to remand the proceeding again to the Commissioner of Income-tax (Appeals) for being heard on the merits. In this situation, the question is whether this court exercising jurisdiction under section 260A of the Act cannot directly remand the appeal filed by the assessee to the Commissioner of Income-tax (Appeals) for a decision on merits. Though, normally under section 260A of the Act, an appeal has to be heard on the substantial questions of law formulated for decision under sub-section (6) of section 260A of the Act, the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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