SARABJIT SINGH Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) At the instance of the assessee, the Income-tax Appellate Tribunal(hereinafter referred to as the Tribunal), Delhi Bench 'E', referred to this Court the following question of law pertaining to the assessment year 1976-77, under Section 256(1) of the Income-tax Act, 1961(for short the Act) for its opinion:

(2.) The reference was heard by a Division Bench, but the two learned Judges differed with each other. B.N.Kirpal, J(as his Lordship then was) took the view that Section 144B of the Act being procedural in nature, its non-compliance would result in procedural irregularity, which could be cured from the stage it intervened and, therefore, the order which is passed while ignoring the said provision, could not be regarded as a nullity. Thus, his Lordship answered the question in the affirmative. However, Mahinder Narain, J held that the assessment order being contrary to the provisions of Section 144B of the Act was a nullity as having been passed without jurisdiction; the Commissioner of Income-tax(Appeals) could not extend the period of limitation which had already expired and direct passing of a fresh draft assessment order and in view of the fact that Section 144B did not confer power in the CIT(Appeals) to set aside the assessment, he could not re-confer the jurisdiction on the Income-tax Officer to make a fresh assessment. His Lordship, therefore, answered the question in the negative.

(3.) The two learned Judges having answered the question differently, the papers of the reference were laid before Hon'ble the Chief Justice for referring the matter to a third Judge in accordance with clause 26 of the Letters Patent of the Lahore High Court, as applicable to this Court. Hence the matter has come up before me as the third Judge.