K NEDUNCHEZHIAN Vs. DEPUTY COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE petitioner seeks to challenge the order of assessment passed by the respondent herein dated 29. 12. 2004 under Section 158bc (c) read with Section 143 (3) of the Income-Tax Act.

(2.) MR. C. RAMACHANDRAN, learned senior counsel appearing for the petitioner would contend that there was a search made in the petitioner's premises in December,2002 pursuant to warrant dated 12. 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 9. 12. 2004 to which the petitioner filed his detailed replies on 16. 12. 2004 and 23. 12. 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. The 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 29. 12. 2004 whereby serious violations of principles of natural justice have been committed by the respondent while passing the order impugned in the Writ Petition. It is in these circumstances, the learned senior counsel would contend that the petitioner cannot validly work out his remedy by way of statutory appeal provided under Section 247 to 251 of the Income Tax Act.

(3.) ACCORDING to the learned senior counsel, a perusal of the powers of the Commissioner (Appeals) would show that such powers are very limited where he cannot possibly deal with the question as to violation of principles of natural justice and that he can confine his scope of consideration while disposing of the appeal within the limited scope provided under Section 251 (1) (a) (b) and (c) of the Act and the said provision does not provide any scope for dealing with the question of violation of principles of natural justice while passing the impugned order of assessment. In this context, the learned senior counsel also relied upon the Finance (No. 2) Act,1998 which came into effect on and from 1. 10. 1998 in and by which certain expressions in the then existing Section 251 of the Act came to be removed and such expressions having been deleted from the said provisions, it will have be held that the Commissioner (Appeals) lack jurisdiction to deal with such preliminary issue relating to the violation of principles of natural justice and the said appellate Authority can only deal with the question as to merits of the assessment and nothing else.