Commissioner of Income Tax Vs Gangaram Mohanlal Mittal and Sons.

G.G. Sohani, Actg. C.J.

1. By this reference u/s 256(1) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"), the income tax Appellate Tribunal, Indore Bench, has referred the following questions of law to this court for its opinion :

"(1) Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is justified in holding that where an assessment is made after reference to the Inspecting Assistant Commissioner u/s 144B, it could not be said to be an, order passed by the Income Tax Officer ?

(2) Whether, on the facts and in the circumstances of the case, the view of the Income Tax Appellate Tribunal that where an assessment order is passed by the Income Tax Officer following the direction of the Inspecting Assistant Commissioner u/s 144B, the said order of assessment could not be revised by the Commissioner of Income Tax u/s 263 of the Income Tax Act is correct in law ?"

2. The material facts giving rise to this reference, briefly, are as follows :

3. While framing the assessment of the assessee for the assessment year 1978-79, the Income Tax Officer proposed to make additions exceeding Rs. 1 lakh to the income declared by the assessee. The Income Tax Officer made a reference u/s 144B of the Act to the Inspecting Assistant Commissioner. In accordance with the directions given by the Inspecting Assistant Commissioner, the Income Tax Officer passed an order of assessment. The Commissioner of Income Tax, exercising powers u/s 263 of the Act, held that the order passed by the Income Tax Officer was prejudicial to the interests of the Revenue inasmuch as proper enquiries were not made by the Income Tax Officer while making an addition of Rs. 25,000 in the utensils account. The Commissioner of Income Tax, therefore, set aside the order of assessment and directed the Income Tax Officer to make a fresh assessment after making proper enquiries. Aggrieved by the order passed by the Commissioner of Income Tax, the assessee preferred an appeal before the Tribunal. The Tribunal held that the order of assessment which was passed by the Income Tax Officer in accordance with the directions issued by the Inspecting Assistant Commissioner u/s 144B of the Act was not amenable to the jurisdiction of the Commissioner u/s 263 of the Act. In this view of the matter, the Tribunal set aside the order passed by the Commissioner of Income Tax. Aggrieved by the order passed by the Tribunal, the Revenue sought reference and it is at the instance of the Revenue that the aforesaid questions of law have been referred to this court for its opinion.

4. At the time of hearing, learned counsel for the parties conceded that the matter arising in this case was governed by the decision of this court in Commissioner of Income Tax Vs. Vithal Textiles, where a Division Bench of this court has held that the Commissioner has jurisdiction u/s 263 of the Act to revise the order of assessment passed by the Income Tax Officer in accordance with the directions given by the Inspecting Assistant Commissioner u/s 144B of the Act. We see no reason to take a view different from that taken in Commissioner of Income Tax Vs. Vithal Textiles, . Following that decision, therefore, it must be held that the Tribunal was not right in holding that the order of assessment in the instant case could not be said to be an order passed by the Income Tax Officer and that the said order could not be revised by the Commissioner u/s 263 of the Act.

5. For all these reasons, our answers to the two questions referred to this court by the Tribunal are in the negative and in favour of the Revenue. In the circumstances of the case, parties shall bear their own costs of this reference.