Document Fragment View

Matching Fragments

Keeping in view the information supplied by the assessee and facts on file, the income returned by the assessee is hereby accepted."

In the said order of assessment, AO recorded a note, which reads as under:

"After receiving a call from Shimla on 3.12.2002, I visited the office of Worthy CIT, Shimla on 4.12.2002 along with all the assessment records and relevant documents of M/s Green World Corporation. The case was thoroughly discussed with (sic) records and relevant worthy CIT, Shimla in the presence of learned Addl. CIT, Solan Range, Solan. All the documents and queries raised and further reply submitted by the assessee was properly glanced through by the worthy CIT and after going through the questionnaire issued to the assessee on 18.10.2002 and reply submitted by the assessee in response to that on 7.11.2002, 13.11.2002 and 25.11.2002, worthy CIT has directed that since the reply submitted by the assessee is satisfactory and upto the mark, no more information is required to be called for and to assess the case as such. He, therefore, directed in presence of the learned Addl. CIT, Solan Range, Solan to incorporate that discussion in the body of the order sheet. Needful has been done as directed. A copy of the draft assessment order was sent to the Addl. CIT, Solan Range, Solan under the office letter No. ITO/PWN.2002/03/2127 dated 13.12.2002 for according necessary approval. Approval to complete the assessment was received through telephonic from the office of the Addl. Commissioner of Income Tax, Solan Range Solan and assessment has been completed and the assessment order has been served upon the assessee on 19.12.2002."

Assessee filed its reply thereto on or about 16.3.2004.

6. He inter alia on account of his old age, ill-health, etc. also filed an application for transfer of its cases from CIT (Shimla) to CIT (Delhi) on 4.5.2004.

The CIT (Shimla) passed an order dated 12.7.2004 under Section 263 of the Act inter alia on the premise that the Assessing Officer while finalizing the Assessment had not examined the case properly. In the said order, the following directions were issued:

"16.3 Under the circumstances, I am left with no alternative but to decide the proceedings on the basis of material on record. In the assessment year under review, I estimate the assessee's income from Units at Parwanoo at 5% of the declared turnover. The income shown in excess of 5% amount is treated as undisclosed income from undisclosed sources. As the assessee does not fulfill many of the conditions for being entitled to deduction u/s 80IA/IB, no part of the total income, not even the one estimated @ 5% of the turnover at Parwanoo, would be entitled for deduction u/s 80IA/IB.
ii. Despite order by the High Court, CIT (Delhi) having not been impleaded as a party, it must be held that the CIT (Shimla) has no locus standi to maintain the appeal.
iii. Notice under Section 263 having been issued in respect of Assessment Year 2000-2001 only, directions in respect of the past and the future years of Assessments could not have been issued; some of them being barred by limitation.
iv. The order of the CIT (Shimla) being biased, the Tribunal has rightly interfered therewith as the notices under Section 148 of the Act had been issued pursuant to the directions of the CIT (Shimla), the same are not maintainable.

[See also Tarlochan Dev Sharma vs. State of Punjab & Ors. [(2001) 6 SCC 260]

33. The other question which requires determination is as to whether the CIT (Shimla) could maintain an appeal before the High Court.

An appeal is ordinarily maintainable at the instance of the Assessing Officer. Not only an order of assessment was passed but also CIT (Shimla) had already passed an order. Notices under Section 148 of the Act had already been issued much prior thereto.

Before us, reliance has been placed upon some decisions by Mr. Salve to contend that CIT (Shimla) has no jurisdiction. Even in a situation of this nature such a view appears to have been taken in Commissioner of Income Tax vs. Sahara India Financial Corporation Ltd. [212 CTR 178 (Delhi)] wherein a question whether the appeal preferred by the Revenue in the Delhi High Court was questioned by the assesse on the ground of lack of territorial jurisdiction, it was held: