SHRI GOVINDRAM SEKSARIA CHARITY TRUST vs INCOME TAX OFFICER.

G. G. Sohani, J. - This is a petition under art. 226/227 of the constitution.

The material facts giving rise to this petition, briefly, are as follows :

The petitioner is a public charitable trust. While framing assessment of the petitioner under the IT Act, 1961(hereinafter referred to as the Act), for the asst. yrs. 1973-74, 1975-76, 1976-77 and 1977-78, respondent No. 1, the ITO held that the petitioner was entitled to exemption under s. 11 of the Act. In exercise of revisional jurisdiction under s. 263 of the Act, the Commissioner set aside the order of assessment passed by the ITO and directed the ITO to make fresh assessment. Aggrieved by that order, the petitioner preferred an appeal before the Tribunal. The Tribunal allowed the appeal and set aside the order passed by the commissioner. The petitioner contends that even though the Tribunal had set aside the order passed by the commissioner, respondent No. 1 proceeded to assess the petitioner a fresh and issued four draft assessment orders in and issued four draft assessment orders in accordance with the provision of s. 144(b) of the Act. The contention raised on behalf of the petitioner that the order of the Commissioner directing the ITO to make fresh assessments was set aside by the Tribunal and, hence, the ITO had no jurisdiction to proceed to make the assessment afresh, was rejected by respondent No. 1 on the ground that the revenue had not accepted the order passed by the Tribunal. The petitioner contends that the action of respondent in pursuance of the order passed by the Commissioner even though that order has been set aside, is without jurisdiction and deserves to be quashed.

Having heard the ld. counsel for the parties, we have come to the conclusion that this petition deserves to be allowed. The order passed by the Commissioner directing the ITO to make fresh assessment having been set aside by the Tribunal, the ITO had no jurisdiction to proceed to assess the petitioner afresh. It may be that the revenue was aggrieved by the order passed by the Tribunal but the ITO assumed jurisdiction to assessee the petitioner afresh by holding that the order of the Tribunal was not accepted by the revenue. Till the order passed by the Tribunal is set aside the revenue is bound by the order passed by the Tribunal. The ld. counsel for the revenue was unable to justify the action taken by the ITO. The notice and the draft assessment orders issued by the ITO, therefore, deserve to be quashed.

For all these reasons, this petition is allowed. The notice, Annexure X, and the draft assessment orders, Annexures XII, XIII, XIV and XV, are all quashed. In the circumstances of the case, parties shall bear their own costs of this petition. Security amount, if any, be refunded to the petitioner.