Makhan Singh Gurcharan Singh (HUF) vs A.C.I.T, N.A. Circle, New Delhi

S.B. Sinha, C.J.—In this application u/s 151 CPC. a prayer has been made for rectifying a mistake stated to have occurred in the Order dated 08.10.2001.

The fact of the matter lies in a very narrow compass. The appellant is a HUF. According to the appellant as its income for the assessment year 1989-90 was below taxable limit, it did not file any return u/s 139(1) or Section 139(2) of the Income Tax Act, 1961 (in short, the ''Act''). However, in relation to certain receipts the assessment proceedings were reopened by the assessing officer in terms of Sections 147 and 148 of the Act. The said assessment proceedings were allegedly initiated after the expiry of 4 years from the date of assessment. The assessment proceeding relating to the said assessment year were completed on 12.01.1993 by determining a total income of Rs. 2,98,800/-, as having been derived from capital gains. An appeal there-against was filed by the appellant herein and by order dated 02.03.1994, the said appeal was allowed holding that the assessing officer was not justified in treating the receipt of the security money as consideration of sale/transfer of the leasehold land. The Department preferred an appeal against the aforementioned order before the Income Tax Appellate Tribunal ( in short, the ''Tribunal''). Cross-objection was filed by the appellant herein inter alias on the ground that the learned Commissioner of Income Tax had failed to render any decision as regards its plea of invalidity of the proceedings initiated u/s 147 of the Act.

Allowing appellant''s cross-objection, the Tribunal inter alias held :-

"8. I have carefully considered the whole gamut of facts and circumstances of the case and the rival submissions. As is mentioned in para 5 above, validity of notice is a matter of jurisdiction and it goes to the very root of the assessment. The assessed had raised this issue before the ld. CIT (A), as is evident from the discussion in pages 3 & 4 of the appellate order, but no finding is recorded by the ld. CIT (A). However, the fact that the notice u/s 148 was actually issued after obtaining the satisfaction of the commissioner of Income Tax and not that of the Deputy Commissioner of Income Tax, as was legally required in terms of provisions of Section 151(2) of the Act requires verification, because possibility of an inadvertent error in filling the printed proforma cannot be ruled out. It would be relevant to point out that if for failure of the AO to obtain the previous sanction of the "prescribed authority", before issuing notice u/s 148, the re-assessment proceedings are held liable to be quashed, the objections raised in the Department''s appeal against the decision of the ld. CIT (A) on merits and the other objections of the assessed will not survive, because they will remain only of academic interest. I would, Therefore, set aside the order of the ld. CIT (A) and restore the matter to his file for firstly deciding in accordance with law, the question of validity of the proceedings u/s 147 of the Act, after affording both the parties an opportunity of being heard and after looking into the records. In this view of the matter, it is not considered necessary to refer to the arguments advanced by the rival parties in relation to Department''s appeal."

While passing aforesaid order, the Tribunal did not consider the merits of the matter in the appeal preferred by the Department.

A Division Bench of this Court, (of which one of us D.K. Jain, J. was a Member), on 08.10.2001 passed the following order:-

"Heard.

As the matter has been remitted back to the CIT(A), we do not think it necessary to entertain the appeal. However, we find substance in the plea of the learned counsel for the appellant that the Assessing Officer may start recovery proceedings because the CIT(A)''s order is no longer in existence after the matter has been remitted back to the said authority by the Tribunal.

We direct that till the matter is decided by the CIT(A) afresh no steps for recovery shall be taken for the dispute amount, which is relatable to the order of remand.

We make it clear that we have not said anything about the merits of the case which shall be adjudicated by the CIT(A).

Appeal is accordingly disposed of."

Mr. K.R. Manjani, the learned counsel appearing on behalf of the appellant submitted that an error apparent on the face of the records has been committed by this Court inasmuch as the Commissioner on remand will have no power to alter his decision so far as the issue relating to merit of the matter is concerned inasmuch as he is bound by his previous decision thereon.

We agree with the said contention. The order of remand would result in futility, as the appellate authority having regard to its earlier order will have no other option but to allow the appeal, even if it comes to the conclusion that the proceedings were validly initiated.

It is beyond any cavil of doubt whatsoever that in the event the CIT(A) decides the question of validity or otherwise of the proceedings u/s 147 and 148 of the Act in favor of the assessed, the Revenue may prefer an appeal there against whereupon, the contention of the Revenue on both the questions, namely, the validity of action u/s 147 and the merit of the addition made to the total income, would have to be determined afresh. However, in the event, the CIT(A) determines the question against the assessed, he will also have a right to prefer an appeal there-against wherein again both the afore-noted questions have to be considered afresh by the Tribunal.

For the reasons aforementioned, interest of justice will be sub-served if the order of the Tribunal is modified to the extent that the order of remand shall be confirmed to the validity of the re-assessment proceedings and till a decision on such a question is arrived at by the CIT(A), the Revenue''s appeal before the Tribunal shall be deemed to be pending. In other words, the order of remand shall be a limited remand and not an open one.

With the aforementioned observations and directions, the order dated 08.10.2001 is modified and the application is disposed of accordingly.