2007 (12) TMI 407

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....the assessee. This was done in exercise of powers under section 143(1)(a) of the Income-tax Act, 1961. Thereafter, the appellant was sent notice dated December 9, 1992, for the regular assessment fixing the hearing on January 8, 1993. However, during the course of assessment proceedings, the notice was served on the appellant under section 154 of the Act on January 21, 1993, proposing to make the prima facie adjustment on account of the provisions of gratuity under section 40A (7) and it is alleged that the appellant filed a revised return, declaring the loss of Rs. 55,04,885 for the assessment year 1992-93 on January 25, 1993, instead of the declared loss of Rs. 56,57,685. Then intimation under section 143(1)(a) was sent to the assessee, v....

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....against the order under section 143(1)(a) and, therefore, the Commissioner (Appeals) had no jurisdiction to decide the issue. It was found, that the Assessing Officer has passed the order under section 154(1)(b) and, therefore, the findings recorded by the Commissioner (Appeals) were reversed on the ground of his having no jurisdiction to decide the issue in appeal against the order made under section 143(3) of the Act. This appeal was admitted, vide order dated September 8, 2003, by formulating the following three substantial questions of law : "(A) Whether the Income-tax Appellate Tribunal, Jodhpur Bench, Jodhpur, was justified in accepting the appeal filed by the Assessing Officer relating to the assessment year 1992-93, vide appel....

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....ars the right of the assessee for challenging the issue in this respect during the assessment proceedings under section 143(3) of the Act and for filing the appeal under section 246 of the Act and equally the appellate authority has and had no jurisdiction to decide the issue in the appeal against the assessment order under section 143(3) of the Income-tax Act, 1961." A bare reading of the questions would show that the basic controversy is as to whether the order under section 143(1)(a) was or being appealable and no appeal having been filed and order having been modified under section 154(1)(b) whether it is open to the assessee to assail the conclusions recorded in the order under section 143(1)(a) read with section 154(1)(b) in an app....