2001 (12) TMI 64

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.... year 1989-90 was below the taxable limit, it did not file any return under section 139(1) or section 139(2) of the Income-tax Act, 1961 (in short "the Act"). However, in relation to certain receipts the assessment proceedings were reopened by the Assessing Officer in terms of sections 147 and 148 of the Act. The said assessment proceedings were allegedly initiated after the expiry of four years from the date of assessment. The assessment proceedings relating to the said assessment year were completed on January 12, 1993, by determining a total income of Rs.2,98,800, as having been derived from capital gains. An appeal there against was filed by the appellant herein and by order dated March 2, 1994, the said appeal was allowed holding that ....

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....ld be relevant to point out that if for failure of the Assessing Officer to obtain the previous sanction of the 'prescribed authority', before issuing notice under section 148, the reassessment proceedings are held liable to be quashed, the objections raised in the Department's appeal against the decision of the learned Commissioner of Income-tax (Appeals) on merits and the other objections of the assessee will not survive, because they will remain only of academic interest. I would, therefore, set aside the order of the learned Commissioner of Income-tax (Appeals) and restore the matter to his file for firstly deciding in accordance with law, the question of validity of the proceedings under section 147 of the Act, after affording both the....

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....nasmuch as the Commissioner on remand will have no power to alter his decision so far as the issue relating to the merits of the matter is concerned inasmuch as he is bound by his previous decision thereon. We agree with the said contention. The order of remand would result in futility, as the appellate authority having regard to its earlier order will have no other option but to allow the appeal, even if it comes to the conclusion that the proceedings were validly initiated. It is beyond any cavil of doubt whatsoever that in the event the Commissioner of Income-tax (Appeals) decides the question of validity or otherwise of the proceedings under sections 147 and 148 of the Act in favour of the assessee, the Revenue may prefer an appea....