1980 (5) TMI 47

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....der which finally got referred to the IAC. The Commissioner thought that the order of the ITO, therefore, suffered from a legal infirmity. According to him, the legal infirmity whether it be treated as procedural or substantive conferred on the assessee a right to challenge the validity of assessment before Appellate Authorities praying for the annulment of the assessment. He, therefore, thought that the ITO's orders were erroneous and also prejudicial to the interest of revenue. After hearing the assessee, therefore, he set aside the assessments for the above three years and directed the ITO to make the assessments for a proper assessment and if found necessary to make draft assessment orders and refer them to the IAC under s. 144B. It is ....

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....ut that following the provisions under s. 144B the appeal would lie to the Commissioner that then the AAC. The ITO's discretion is also affected by the ITO not following the procedure laid down for assessment year prior to 1st April, 1976 but following the procedure under s. 144B laid down after that date. As against this, there being no prejudice to the Revenue according to the ld. counsel on merits the assessee was substantially aggrieved on account of the above. The Commissioner's order, therefore, lacks jurisdiction and should be set aside also on merits. 3. For the Department reference is made to the order of the Commissioner. The ld. counsel had referred to the decision in 111 ITR 312 especially on page 323 to explain the scope of ....