TMI Blog1998 (6) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... income-tax, Investigation Circle l(1), Surat. While framing assessment, the assessee was represented through his representative. In the last paragraph of the assessment order the Assessing Officer has mentioned as follows-- "A draft order was submitted to the DC, Range- 1, Surat for his approval and for his valuable instructions. The DC, Range-1, Surat has granted his approval vide his letter No. SB.I/SBS/91-92 dated 26-2-1992 and accordingly the order is passed.' 2. The assessee moved before the first appellate authority on merit of the appeal as well as challenging the jurisdiction of the Assessing Officer as to how the assessment was framed after getting approval from the DC, Range-I, Surat. According to the assessee, the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eye of law because the Board's Instruction cannot override the provision of the Act. In support of his contention reliance was placed on Kerala Financial Corpn. v. CIT [1994] 210 ITR 129/75 Taxman 573 (SC), Madura Chit Investments (P.) Ltd. v. ITO [1994] 208 ITR 228 (Mad.), S.R.E Finance Ltd. v. CBDT [1995] 211 ITR 861 (Delhi), Further it was contended that the Assessing Officer was supposed to Act within the power vested in him under law and he should not have acted according to the dictates of another authority. Reliance was placed on the decision of Patna High Court reported in Elphinstone Picture Palace v. Union of India [1969] 74 ITR 115. 4. On the other hand, the learned departmental representative supported the orders passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4B of the Act under which before finalisation of the assessment order a draft order was being sent to the Dy. CIT for his approval, and during that procedure, the objections were invited from the assessee. It appears that the main contention of the assessee is that since the Assessing Officer had followed a provision which was not present in the statute, therefore, the entire order of assessment is bad in law. On the other hand, as it appears from the stand taken by the revenue, in all search and seizure cases, the draft order is being sent to the Dy. CIT for his approval and the same procedure was followed in the present case also. From the assessment order, we find that during the course of hearing before the Officer, the assessee was rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Dy. CIT simply approves the draft order to that event the Assessing Officer is not required to give any opportunity of hearing to the assessee. In any view of the matter, in the present case, it is not clear that the nature of direction given by the Dy. CIT. Therefore, considering the entire circumstances of the case, in our opinion, the first appellate authority was justified in setting aside the assessment for giving opportunity of hearing to the assessee. We do not accept the contention of the assessee to the effect that the order of assessment should have been cancelled meaning thereby no assessment can be framed against the assessee for the present assessment year. That analogy if we accept will amount to stretch the provision of la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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