TMI Blog1998 (2) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... f account were seized under section 132(1) of the Income-tax Act relating to the assessment years 1972-73 to 1977-78. After the seizure of the books of account, the petitioner was called upon to file the return for the assessment year 1974-75. Though the petitioner was able to file the return for the other assessment years, he was not able to file the return for the relevant period since the entire books of account and records have been seized by the Department.The petitioner would further contend that in the circumstances there being no other alternative he was forced to file a return without the books of account having been audited and on February 8, 1978, the respondent had sent a draft assessment order under section 143(3) read with section 144B denying exemption on various grounds including that the books were not audited as required under section 12A and the petitioner was called upon to file his objections under section 144B. The objections were filed and consequently the order of the Income-tax Officer was passed on April 29, 1978. An appeal was filed before the Commissioner of Income-tax (Appeals). Before the Commissioner of Income-tax it was contended by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already been remitted back by the Commissioner of Income-tax to the file of the Income-tax Officer for reconsideration, the Income-tax Officer was directed to consider the exemption claimed by the assessee in accordance with the relevant provisions of law as applicable to the assessment year 1974-75. The Tribunal did not consider the cross-objections on merits but held that it was also open to the assessee to put forward his claim of limitation and jurisdiction in making the assessment and the Income-tax Officer was also directed to give an opportunity to the assessee to file the audit certificate which was not filed earlier. The Tribunal also observed that the Income-tax Officer was at liberty to complete the assessment in accordance with law after giving due opportunity of hearing to the assessee. But while passing the order, the Tribunal observed that both the appeal and the cross-objection filed by the assessee were dismissed. Aggrieved by the expression that the cross-objection had been dismissed, the assessee filed a miscellaneous petition in M. P. No. 14 of 1987 which resulted in the Tribunal issuing a corrigendum. Paragraph 7 of the original order was substituted to the ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the Tribunal and consider whether there is any basis for the apprehension of the writ petitioner. The petitioner was, in fact, not aggrieved by that portion of the order of the Commissioner of Income-tax dated March 24, 1984, remitting the case to the Income-tax Officer for recomputing the income and for verification of the claim for exemption under section 11 of the Act. As against the said order no appeal was filed by the assessee. Though in the cross-objection filed by him in the appeal by the Department a passing contention is raised by the assessee by observing that the order of the Commissioner was erroneous, the fact remains that the cross-objection was directed only as against the non-consideration of the issue of limitation by the Commissioner as could be evident from the petitioner's own statement in paragraph No. 23 of his affidavit filed in support of this writ petition. The Tribunal while dismissing the appeal and confirming the order of the Commissioner of Income-tax (Appeals) in paragraph No. 6 of its order, permitted the assessee to put forward his claim of limitation and jurisdiction in making the assessment before the Income-tax Officer. The Tribunal did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Act, 1961, the Supreme Court has held so in the following cases : (1) Hukumchand Mills Ltd. v. CIT [1967] 63 ITR 232 (SC) (2) CIT v. National Taj Traders [1980] 121 ITR 535 (SC) ; and (3) CIT v. Assam Travels Shipping Services [1993] 199 ITR 1 (SC). It is neither contended before me nor can it be contended that the Income-tax Officer does not have jurisdiction to decide a legal or jurisdictional issue. Learned counsel for the petitioner seeks to place reliance on the following judgments in support of his contention that the order of the Commissioner of Income-tax and the Tribunal are unsustainable. In CIT v. Estate of Late N. Veeraswami Chettiar [1963] 49 ITR 13, a Division Bench of this court was dealing with a case (at page 20) where the appellate authority while accepting the contention that the assessment was made in violation of the bar of limitation, yet purported to give a direction to proceed with the assessment, it was held that such an order would be invalid. In that case a contention was also raised on behalf of the Department as though where the Income-tax Officer was giving effect to a direction of the appellate authority under section 31 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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