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TMI Blog1990 (3) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... 144 by another ITO. The assessee had filed an appeal before the Commissioner (Appeals) over the earlier ex parte order both on the grounds of invalidity of the assessment order as well as on merits. 3. The AAC however did not decide the case on merits but as stated above, held that the first assessment order was invalid on the ground that the regular assessment had been made subsequently. He has stated how the two assessments came to be made. The assessee had filed a return for the subsequent asst. year before the ITO, Circle-IV-N (2) while the return for AY 1981-82 was filed before the ITO, Survey Circle-Ward-H. During the course of the assessment proceedings for AY 1982-83 the ITO was informed by the assessee that the assessment for AY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment orders. He relied upon the decision of the Hon'ble High Court in the case of Smt. Sohani Devi Jain v. ITO [1977] 109 ITR 130 (Gauhati) (FB) to support his contention that the second order could be passed and was valid. 5. The learned DR rejoined by first of all distinguishing the aforesaid decision in the case of Smt. Sohani Devi Jain on the ground that that was a case of fraud. He submitted that the assessee should not have filed a duplicate return. 6. So far as the jurisdiction of the ITO is concerned we do not think that there was anything wrong with the ITO Circle-IV-N(2) exercising it. That is a merely administrative arrangement. The Act empowers the ITO to pass the assessment order and there is no dispute that the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that be so, it was an invalid order". (Page 140 of the report.) Therefore it was the first order which was found to be "suspicious and collusive". The High Court has held it to be invalid. Since the first order was invalid the second could be passed. Therefore in this case the second order was invalid. The AAC was wrong in setting aside the first order. The second order as stated above, is non est. The AAC has not decided the grounds of appeal before him. Therefore the matter is restored back to him to decide those grounds according to law.
7. The second ground in this appeal is that the AAC ought to have upheld the order of the ITO. Therefore the result is that the appeal is partly allowed for statistical purposes X X X X Extracts X X X X X X X X Extracts X X X X
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