Income Tax Appellate Tribunal - Jodhpur
Teja Singh And Smt. Balbir Kaur vs Income Tax Officer on 25 August, 2006
Equivalent citations: (2007)106TTJ(JODH)247
ORDER
Hari Om Maratha, J.M.
1. These appeals of the different assessees are directed against the separate orders of the CIT(A) dt. 20th April, 2006 pertaining to asst. yr. 1994-95. These two appeals can be disposed of simultaneously because the points involved therein are exactly identical. The relevant facts common to both these appeals are that the appellant's lands were acquired by the defence authority. 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 Section 264/144 of the Act on 24th Jan., 2001. Briefly stated, the facts of the case are that the assessees' lands were acquired by the defence authority on 29th Sept., 1989 under Section 4 of the Central Acquisition Act, 1894. The possession of the land was taken between 8th April, 1991 to 16th April, 1991. The compensation of the land was awarded on 23rd Jan., 1992. The payments of the compensation were started in the year 1991 and were completed by 4th Nov., 1992. Some of the payments were delayed for which interest was also paid to the assessee between 9th April, 1991 to 4th Nov., 1992. The learned AO brought to tax this interest received between abovementioned period, in asst. yr. 1994-95 on receipt basis, on the ground that the villagers were not maintaining any books of account and as such it was proper to assess this interest income on receipt basis only.
3. The assessee received total interest of Rs. 2,56,260 which was assessed in his hands under Section 147/144 on 27th March, 1998. Against this order, the assessee preferred a petition under Section 264 of the Act before the CIT, Bikaner for getting the 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 the order of the assessment passed by the AO.
The CIT rejected the ground No. (i) and in relation to ground No. (ii), he gave direction to the AO to give credit for TDS in respect of income brought to tax in the year under consideration, after necessary verification. As regards ground No. (iii) he held that the interest received upto the date of award i.e. 23rd Jan., 1992 is to be treated as capital receipt and has to be excluded from the total income and only interest received thereafter has to be brought to tax as revenue receipts. Thus, the assessment orders passed in the abovementioned cases were set aside with the directions to the AO to reframe these assessments in accordance with the observations made by him and after giving due opportunity of hearing to the assessee. Accordingly, the AO passed orders under Section 264/144 on 24th Jan., 2001 in both these cases against which the assessees filed their respective appeals. The 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 Section 264/144 were maintainable. He further observed that as per provisions of Section 244A, order passed by the AO in pursuance to direction of the learned CIT in revision under Section 264, is not an appealable order. Now, both the assessees have preferred their appeals before this Bench. The issues involved in them are common.
4.I have heard the rival submissions and perused the evidence on record.
5. The facts of both the cases are mutatis mutandis identical and have been clearly narrated in the earlier part of this order. 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 Section 264/144 on 24th Jan., 2001 in compliance of the directions given by learned CIT (Admn.) in his order passed under Section 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 Section 246A, no appeal lies against the same.
6. Section 245A deals with orders against which appeal lies before the CIT(A). In this section, there is no mention that an appeal lies against the revisional order passed under Section 264 of the Act. In our considered opinion, the learned CIT(A) was carried away by this fact alone to come to the conclusion that no appeal lies before him against the order dt. 24th Jan., 2001, passed in both these assessees cases. I am afraid, the finding of the CIT(A) is not correct. Actually, the assessees have not filed their appeals against revisional orders passed under Section 264 of the Act. 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 (headquarters) has passed a common order under Section 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."
7. From the above, it is crystal clear that the assessment orders were framed afresh and hence are appealable orders as per the provisions of Section 246A(1)(a) of the Act which reads as under:
(1) Any assessee aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the CIT(A) against--
(a) an order passed by a Jt. CIT under Clause (ii) of Sub-section (3) of Section 115VP or an order] against the assessee where the assessee denies his liability to be assessed under this Act or an intimation under Sub-section (1) or Sub-section (1B) of Section143, where the assessee objects to the making of adjustments, or any order of assessment under Sub-section (3) of Section 143 or Section 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;
8. 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. In the case of CIT v. Eurasia Publishing House (P) Ltd. , the CIT did not give any direction to verify any facts or law but in this case the assessment order itself was set aside to be framed afresh. Likewise, the Hon'ble Karnataka High Court in the case of CIT v. Hindustan Aeronautics Ltd. gave a ruling that an order refusing to revise an order is amenable to writ jurisdiction of the Hon'ble High Court. The facts of the above cases are completely distinguishable with the cases in hand. Consequently, I hold that the appeals against assessment orders passed in compliance of the orders of CIT Under Section.
264 of the Act, in these two cases, are appealable. Hence, I restore both these appeals to the file of the learned CIT(A) with the direction to decide them on merits, as per law.
8. In the result, both the appeals are allowed for statistical purposes.