TEJA SINGH v. INCOME TAX OFFICER
[Citation -2006-LL-0825-18]

Citation 2006-LL-0825-18
Appellant Name TEJA SINGH
Respondent Name INCOME TAX OFFICER
Court ITAT
Relevant Act Income-tax
Date of Order 25/08/2006
Assessment Year 1994-95
Judgment View Judgment
Keyword Tags fresh assessment • revisional order • capital receipt • interest income • receipt basis
Bot Summary: The main grievances of the appellants is against the finding of the learned CIT(A) about non-maintainability of appeal against the assessment order passed under s. 264/144 of the Act on 24th Jan., 2001. The only question which has to be decided by me in these appeals is with regard to maintainability or not maintainability of the appeals before the learned CIT(A) against the orders passed by the AO under s. 264/144 on 24th Jan., 2001 in compliance of the directions given by learned CIT in his order passed under s. 264 of the Act. According to the learned CIT(A) the order passed by the AO in compliance of the direction of the learned CIT is not a fresh assessment order and therefore, under the provisions of s. 246A, no appeal lies against the same. The appeals were filed by the parties against the fresh assessment orders which were framed as per the direction of the CIT. The CIT, Bikaner has passed a common order under s. 264 of the Act in relation to both these assessees by giving the following findings, vide para No. 10 the assessment orders passed in the abovementioned cases are accordingly set aside with the directions to the AO to reframe the assessment in accordance with the directions given after giving due opportunity to the assessees. From the above, it is crystal clear that the assessment orders were framed afresh and hence are appealable orders as per the provisions of s. 246A(1)(a) of the Act which reads as under: Any assessee aggrieved by any of the following orders may appeal to the CIT(A) against an order passed by a Jt. CIT under cl. Of sub-s. of s. 115VP or an order against the assessee where the assessee denies his liability to be assessed under this Act or an intimation under sub-s. or sub-s. of s.143, where the assessee objects to the making of adjustments, or any order of assessment under sub-s. of s. 143 or s. 144, to the income assessed, or to the amount of tax determined, or to the amount of loss computed, or to the status under which he is assessed; Therefore, in my considered opinion, the decisions relied by the learned CIT(A) are not at all applicable to the facts of the case under reference. The Hon ble Karnataka High Court in the case of CIT vs. Hindustan Aeronautics Ltd. 54 CTR 158: 157 ITR 315 gave a ruling that an order refusing to revise an order is amenable to writ jurisdiction of the Hon ble High Court.


Hari Om Maratha, J.M.: These appeals of different assessees are directed against separate orders of CIT(A) dt. 20th April, 2006 pertaining to asst. yr. 1994-95. These two appeals can be disposed of simultaneously because points involved therein are exactly identical. relevant facts common to both these appeals are that appellant s lands were acquired by defence authority. main grievances of appellants is against finding of learned CIT(A) about non-maintainability of appeal against assessment order passed under s. 264/144 of Act on 24th Jan., 2001. Briefly stated, facts of case are that assessees lands were acquired by defence authority on 29th Sept., 1989 under s. 4 of Central Acquisition Act, 1894. possession of land was taken between 8th April, 1991 to 16th April, 1991. compensation of land was awarded on 23rd Jan., 1992. payments of compensation were started in year 1991 and were completed by 4th Nov., 1992. Some of payments were delayed for which interest was also paid to assessee between 9th April, 1991 to 4th Nov., 1992. learned AO brought to tax this interest received between abovementioned period, in asst. yr. 1994-95 on receipt basis, on ground that villagers were not maintaining any books of account and as such it was proper to assess this interest income on receipt basis only. assessee received total interest of Rs. 2,56,260 which was assessed i n his hands under s. 147/144 on 27th March, 1998. Against this order, assessee preferred petition under s. 264 of Act before CIT, Bikaner for getting assessment order revised by following grounds: (i) Taxability of whole interest in one single year of receipt, (ii) Credit of TDS when interest had been brought to tax and, (iii) Nature of interest relating to period till date of award was felt in order of assessment passed by AO. CIT rejected ground No. (i) and in relation to ground No. (ii), he gave direction to AO to give credit for TDS in respect of income brought to tax in year under consideration, after necessary verification. As regards ground No. (iii) he held that interest received upto date of award i.e. 23rd Jan., 1992 is to be treated as capital receipt and has to be excluded from total income and only interest received thereafter has to be brought to tax as revenue receipts. Thus, assessment orders passed in abovementioned cases were set aside with directions to AO to reframe these assessments in accordance with observations made by him and after giving due opportunity of hearing to assessee. Accordingly, AO passed orders under s. 264/144 on 24th Jan., 2001 in both these cases against which assessees filed their respective appeals. CIT(A) dismissed these appeals vide his separate orders dt. 20th April, 2006 and 14th Feb., 2006 by holding that no appeals against these assessment orders passed under s. 264/144 were maintainable. He further observed that as per provisions of s. 244A, order passed by AO in pursuance to direction of learned CIT in revision under s. 264, is not appealable order. Now, both assessees have preferred their appeals before this Bench. issues involved in them are common. I have heard rival submissions and perused evidence on record. facts of both cases are mutatis mutandis identical and have been clearly narrated in earlier part of this order. only question which has to be decided by me in these appeals is with regard to maintainability or not maintainability of appeals before learned CIT(A) against orders passed by AO under s. 264/144 on 24th Jan., 2001 in compliance of directions given by learned CIT (Admn.) in his order passed under s. 264 of Act. According to learned CIT(A) order passed by AO in compliance of direction of learned CIT is not fresh assessment order and therefore, under provisions of s. 246A, no appeal lies against same. Sec. 245A deals with orders against which appeal lies before CIT(A). In this section, there is no mention that appeal lies against revisional order passed under s. 264 of Act. In our considered opinion, learned CIT(A) was carried away by this fact alone to come to conclusion that no appeal lies before him against order dt. 24th Jan., 2001, passed in both these assessees cases. I am afraid, finding of CIT(A) is not correct. Actually, assessees have not filed their appeals against revisional orders passed under s. 264 of Act. appeals were filed by parties against fresh assessment orders which were framed as per direction of CIT. CIT, Bikaner (headquarters) has passed common order under s. 264 of Act in relation to both these assessees by giving following findings, vide para No. 10 "the assessment orders passed in abovementioned cases are accordingly set aside with directions to AO to reframe assessment in accordance with directions given after giving due opportunity to assessees." From above, it is crystal clear that assessment orders were framed afresh and hence are appealable orders as per provisions of s. 246A(1)(a) of Act which reads as under: "(1) Any assessee aggrieved by any of following orders (whether made before or after appointed day) may appeal to CIT(A) against (a) order [passed by Jt. CIT under cl. (ii) of sub-s. (3) of s. 115VP or order] against assessee where assessee denies his liability to be assessed under this Act or intimation under sub-s. (1) or sub-s. (1B) of s.143, where assessee objects to making of adjustments, or any order of assessment under sub-s. (3) of s. 143 or s. 144, to income assessed, or to amount of tax determined, or to amount of loss computed, or to status under which he is assessed;" Therefore, in my considered opinion, decisions relied by learned CIT(A) are not at all applicable to facts of case under reference. In case of CIT vs. Eurasia Publishing House (P) Ltd. (1998) 232 ITR 381 (Del), CIT did not give any direction to verify any facts or law but in this case assessment order itself was set aside to be framed afresh. Likewise, Hon ble Karnataka High Court in case of CIT vs. Hindustan Aeronautics Ltd. (1986) 54 CTR (Kar) 158: (1986) 157 ITR 315 (Kar) gave ruling that order refusing to revise order is amenable to writ jurisdiction of Hon ble High Court. facts of above cases are completely distinguishable with cases in hand. Consequently, I hold that appeals against assessment orders passed in compliance of orders of CIT under s. 264 of Act, in these two cases, are appealable. Hence, I restore both these appeals to file of learned CIT(A) with direction to decide them on merits, as per law. In result, both appeals are allowed for statistical purposes. *** TEJA SINGH v. INCOME TAX OFFICER
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