TMI Blog2000 (9) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) holding that no appeal was maintainable under section 246(1)(c) of the Income-tax Act, 1961, against the assessment order made on protective basis ?" For answering the above question posed, a few facts need be stated as under : The Assessing Officer for the assessment year 1978-79 passed an order of assessment under section 143(3) of the Act describing the same to be a "protective assessments holding that the assessee is not a valid trust as it is found to be against the rule of perpetuity. The income claimed by the assessee as a trust was distributed amongst the beneficiaries. Aggrieved by the assessment order, the trust went up in appeal to the Commissioner of Income-tax (Appeals). The appellate authority vide order dated N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 977-78, on the question of status of the assessee and its claim that it was a valid trust, the appeal was entertained and ultimately the assessee had succeeded before the Tribunal. We find no merit in the contention advanced on behalf of the Revenue that since no tax liability has been created against the present assessee, the question posed is academic and the authorities were right in holding that no appeal lay against an order passed by the Assessing Officer in the course of protective assessments. The appeal provision contained in section 246 which was applicable at the relevant time in the assessment year 1978-79 was as under : "246. (1) Subject to the provisions of sub-section (2), any assessee aggrieved by any of the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppealable. We are also of the view that the Appellate Tribunal commuted a grave error may be through inadvertence in not noticing the fact that in the previous assessment years 1976-77 and 1977-78 of the same assessee, appeals were entertained and the Appellate Tribunal had passed an order dated April 27, 1983, recognising the status of the assessee to be a valid trust. On behalf of the assessee, learned counsels Mr. Pathak, relies on the decision of this court in Taraben Ramanbhai Patel v. ITO [1995] 215 ITR 323. It fully supports the submissions made on behalf of the assessee. The decision of the Tribunal in the case of the assessee for the assessment year in question, is contradictory to its own decision dated April 27, 1983, in the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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