1991-VIL-602-KER-DT

Equivalent Citation: [1991] 191 ITR 300, 97 CTR 70, 60 TAXMANN 82

KERALA HIGH COURT

Date: 17.06.1991

COMMISSIONER OF INCOME-TAX

Vs

KN. THANKAPPAN PILLAI

BENCH

Judge(s)  : K. P. RADHAKRISHNA MENON., K. K. USHA 

JUDGMENT

The judgment of the court was delivered by

K. P. RADHAKRISHNA MENON J. -The Revenue is before us. The question referred for our decision reads :

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the appeal filed by the assessee before the Appellate Assistant Commissioner was maintainable in spite of the fact that the assessee did not file any objections to the draft assessment order under section 144B of the Income-tax Act, 1961 ?"

The year of assessment is 1978-79.

As the assessing authority was of the view that the income returned did not reflect the actual income received by the assessee, he proposed variation thereto keeping in view the procedure prescribed under section 144B of the Income-tax Act. The assessee did not file any objections to the proposed variation. Therefore, the assessing authority estimated the income at Rs. 60,900 and completed the assessment under section 143(3) of the Income-tax Act.

The assessee filed an appeal against the said order of assessment. The Revenue contended before the appellate authority that the appeal is not maintainable since the assessee had not filed any objections to the proposed variation. Without going into the merits of this contention, the Appellate Assistant Commissioner allowed the appeal in part and reduced the addition by Rs. 23,030. The Revenue filed a second appeal before the Appellate Tribunal. The short point urged before the Appellate Tribunal was that the appeal before the Appellate Assistant Commissioner was not maintainable in view of the fact that the assessee had not filed any objections to the variation suggested by the assessing authority under section 144B of the Income-tax Act. The Appellate Tribunal, relying on a decision of the Bombay Bench 'C' (Special Bench) of the Income-tax Appellate Tribunal in I.T.A. No. 380/Bom of 1980 dated May 24, 1982, rejected the above contention. The Revenue thereupon moved an application under section 256(1) and sought reference of the question aforesaid to this court for the opinion of this court.

Counsel for the Revenue reiterated the contention he had raised before the Appellate Tribunal that the appeal before the Appellate Assistant Commissioner was not maintainable as the assessee failed to file objections to the variation in the income proposed under section 144B. The question, it is further submitted, therefore, requires to be answered in favour of the Revenue.

We are not impressed by this argument. That the assessment is under section 143(3) of the Income-tax Act cannot be disputed. If that be the position, the appeal against such an assessment is maintainable. (See section 246(c)). Merely because the assessee failed to file his objections to the variation suggested in the notice under section 144B, it cannot be said that the assessment ceases to be an assessment under section 143(3). It is relevant in this context to note that an appeal even against a best judgment assessment under section 144 is provided for under section 246 of the Income-tax Act. It is clear from the language employed in section 246 that, if the assessee is aggrieved by an assessment made under section 143(3), whether the same is made following the procedure prescribed under section 143 or following the procedure prescribed under section 144B, he is entitled to file an appeal against the said assessment. The appeal before the Appellate Assistant Commissioner, in our View, therefore, is maintainable.

In the light of the discussion above, the question requires to be answered in favour of the assessee and against the Revenue. Accordingly, we answer the question in the affirmative and against the Revenue. No costs.

A copy of this judgment under the signature of the Registrar and the seal of this court will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.

 

 

 

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