2005 (1) TMI 33

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....r 12, 2004, that in the said warrant there was no reference to any details as regards the search to be made, that subsequent to the said search, a notice was issued to the petitioner on December 9, 2004 to which the petitioner filed his detailed replies on December 16, 2004, and December 23, 2004, wherein the petitioner wanted the details of the materials and the production of witnesses based on which evidence, the respondent sought to make an assessment as against the petitioner. Learned senior counsel would therefore contend that without taking note of the petitioner's grievances, the impugned order of assessment came to be passed on December 29, 2004, whereby serious violations of principles of natural justice have been committed by the ....

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....counsel and on a perusal of section 250 as well as section 251 of the Act, I am of the view that such contention put forth on behalf of the petitioner cannot be countenanced. For better appreciation of the stand of the petitioner, the relevant provisions can be extracted which read as under: "250.(1) The Commissioner (Appeals) shall fix a day and place for the hearing of the appeal, and shall give notice of the same to the appellant and to the Assessing Officer against whose order the appeal is preferred. (2) The following shall have the right to be heard at the hearing of the appeal: (a) the appellant, either in person or by an authorised representative; (b) the Assessing Officer either in person or by a representative. (3) ....

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.... set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment in accordance with the directions given by the Commissioner (Appeals) and after making such further inquiry as may be necessary, and the Assessing Officer shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment; (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; (c) in any other case, he may pass such orders in the appeal as he thinks fit. (2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of ....

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....twithstanding that such matter was not raised before the Commissioner (Appeals) by the appellant. Thus, a conspectus reading of the above said provisions even after the deletion of certain expressions by the Finance Act (No. 2) of 1998 would make it clear that the Commissioner (Appeals) has been vested with sufficient powers to decide the appeal on the merits on all aspects in order to render justice by virtue of exercise of the appellate power vested with him. In such circumstances, merely, because certain expressions came to be deleted from section 251(1)(c) of the Act, I am afraid, it cannot be held that there is no scope for the Commissioner (Appeals) to go into the question as to the violation of principles of natural justice complaine....