COMMISSIONER OF INCOME TAX Vs. MOHAN SINGH TH

JUDGEMENT

(1.) ON 24th August, 1957, the Income-tax Officer passed an assessment order under Section 23(4) of the Income-tax Act, 1922, as the assessee had failed to comply with certain notice. ON September 14, 1957, the assessee filed an application under Section 27 praying for cancellation of the ex parte assessment order. ON September 21, 1957, the assessee filed an appeal against the original assessment order. ON January 21, 1967, the Income-tax Officer accepted the application under Section 27, set aside the assessment order as a whole and reopened the assessment proceedings. ON January 31, 1967, the Appellate Assistant Commissioner passed an order saying that the income-tax Officer had intimated to him that be had cancelled the original assessment under Section 27. The Commissioner held that the appeal had, therefore, become infructuous and it was dismissed as such. This order was passed without fixing a date for the hearing of the appeal and affording any opportunity of hearing to the assessee. Aggrieved, the assessee filed an appeal before the Tribunal. The Tribunal held that under Section 31, it was incumbent upon the Commissioner to have fixed a date and place for hearing of the appeal. Without fixing such a date and place he had no jurisdiction to dispose of the appeal. The above order was, therefore, bad in law. It was also urged that the assessee had challenged the assessment order on grounds in addition to those taken in the application under Section 27 and for this reason also the appeal could not be said to have become infructuous. The Tribunal did not record any finding on this submission, but found that since it was referring the case back to the Commissioner this objection can be taken before him. ON this view the appeal was allowed and the matter was sent back to the Commissioner. In consequence of a direction issued by this court the Tribunal has referred the following question of law for the opinion of this court:

(2.) IT is not disputed that by the order passed under Section 27, the Income-tax. Officer had completely cancelled the assessment order and reopened the entire assessment proceedings. No part of the original assessment order remained in force thereafter.

(3.) IN our opinion the Tribunal was not right in holding that the Appellate Assistant Commissioner should not have dismissed the appeal as infructuous without fixing a date and place for hearing of the appeal.