2002 (9) TMI 98

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....raft assessment was made in respect of the assessee's income for this year in which the Assessing Officer proposed the disallowance of the claim of the assessee for deduction of loss on sale of investment amounting to Rs.14,27,500. The Inspecting Assistant Commissioner, to whom the draft assessment had been forwarded as required by section 144B of the Income-tax Act, gave a direction to the Assessing Officer under section 144B(4) of the Act to allow the deduction as a short term capital loss. The assessment was, thereafter, made on August 13, 1984, allowing the deduction. The assessee appealed against the assessment in respect of other matters. During the pendency of that appeal, the Commissioner (Appeals) received a letter from the Insp....

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....he Act, the Commissioner was equally bound by the direction and, therefore, did not have jurisdiction to interfere with that order by way of enhancement, or to set aside the order on the ground that the case for enhancement was required to be considered. Section 251 of the Income-tax Act deals with the powers of the Appellate Commissioner. Section 251(1)(a) of the Act sets out the scope of the appellate power. That clause as it then stood read thus: " 251. (1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers- (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment; or he may set aside the assessment and refer the case back to the Assessing Officer....

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....tory provision is clear, the width of the power conferred by the provision is not to be cut down, unless limitation therein is imposed expressly by the statute or is implicit in the statute. Here, the Commissioner while hearing an appeal is required to examine the correctness of the order of assessment made. The fact that the assessment was made in conformity with the directions issued by another officer who is below the Commissioner does not result in a restriction being imposed on the width of the appellate power. The assessment order does not gain immunity by reason of the same being in conformity with the direction issued under section 144B(4) of the Act. While examining the correctness of that order, the appellate authority has availab....