TaxTMI 
TaxTMI 
2006 (4) TMI 83
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.... the first appellate authority under section 246 of the Income-tax Act, 1961, by treating the order under section 139(9) as virtually an order under section 143(3) of the Act? 2. Whether, on the facts and in the circumstances of the case and in law, the Tribunal was justified in upholding the order of the Commissioner of Income-tax (Appeals) setting aside the order passed under section 139(9) of the Income-tax Act and directing the Assessing Officer to frame an assessment?" The assessment year 1989-90 is involved in the present reference. On December 29, 1989, the assessee filed a return of loss of Rs. 2,07,42,000 and also brought forward losses of the earlier years amounting to Rs. 1,30,22,414. The return was filed on the basis of op....
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.... the Commissioner of Income-tax (Appeals) was maintainable. Heard counsel for the parties and perused the record. Learned standing counsel for the Department has reiterated the submissions which were raised before the Tribunal to the effect that the order dated June 26, 1990, was passed under section 139(9) of the Act and such an order is not appealable under section 246 of the Act. By making a reference to the order in question it was pointed out that the heading of the order reads an "order under section 139(9) of the Income-tax Act, 1961". It was submitted that the assessee was allowed time to remove the defects by March 31, 1990, but it failed to do so nor sought further time and as such the order dated June 26, 1990, cannot be treat....
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....elhi) has no application as the court was concerned with the nature of revisional power of the Commissioner of Income-tax conferred on him under section 264 of the Act. The court was not called upon to adjudicate about the appellate power conferred on the appellate authority under section 246 of the Act. Therefore, the aforesaid case has hardly any application to the present case. For the same reason Gopal Glass Works P. Ltd. v. CIT [2001] 252 ITR 354 (Guj) is distinguishable on the facts. In this case, the Gujarat High Court has held that the order of the Assessing Officer holding that the return is invalid, when the assessee failed to remove the defects in the return as pointed out by the Assessing Officer, cannot be interfered with un....
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....d by the Assessing Officer, is not being treated as invalid and computation of income as per the return has to take place. Once assessment proceedings have commenced, the assessment of income has to take place either by accepting the returned income or by making additions, adjustments, etc., as the assessing authority may deem fit, in accordance with law and to pass an order under section 144 to the best of his judgment commonly known as best judgment assessment. After the issuance of notice under section 143(2), the Assessing Officer has to proceed in accordance with the statutory mandate to complete the assessment under sub-section (3) or sub-section (4) of section 143. Meaning thereby an order is required to be passed either under sec....
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....s a settled proposition of law that the mere quoting or mentioning of a wrong section will not invalidate an order if the power to pass an order can be traced under the provisions of Act (see P. Balakotaiah v. UOI, AIR 1958 SC 232 (para. 10), J.K. Steel Ltd. v. UOI, AIR 1970 SC 1173 and State of Karnataka v. Muniyalla, AIR 1985 SC 470). Para. 10 of P. Balakotaiah v. UOI, AIR 1958 SC 232, 236 is reproduced below: "It is argued that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other rule and that the validity of an order should be judged on a consideration of its substance and not its for....