COMMISSIONER OF INCOME TAX Vs. G ARUN KUMAR

JUDGEMENT

(1.) In this reference under section 256(1) of the Income-tax Act, 1961 (for short "the Act"), at the instance of the Revenue, the following question is referred to this court for opinion :

(2.) The facts leading to the reference of this question are briefly stated hereunder : The assessee is an employee of the Peerless General Finance and Investment Company Limited. For the assessment year 1982-83, for which the previous year ended by 31/03/1982, he filed a nil return along with a letter seeking permission, presumably under section 3(4) of the Act, to change the previous year from 31/03/1981, to 30/06/1982, and undertook to offer the income during the period 1/04/1981, to 30/06/1982, for assessment for the assessment year 1983-84. This request was, however, rejected on the ground that the accounting year ended on 31/03/1982, and that such a request ought to have been made before the said date but the letter was filed on 31/08/1982. He thus completed the assessment for the said assessment year. Against that order of assessment, the assessee filed an appeal before the Appellate Assistant Commissioner; the learned Appellate Assistant Commissioner disposed of the appeal holding that for changing the accounting year the Income-tax Officer's consent should have been obtained under the provisions of section 3(4) of the Act and that as no appeal lies under section 246 of the Act, if the Income-tax Officer refused to allow the assessee's claim for change of accounting year under section 3(4) of the Act, the plea cannot be entertained in appeal.

(3.) On further appeal to the Income-tax Appellate Tribunal, two points were urged before it. The first point which is relevant for our purpose, is that the refusal of the Income-tax Officer to change the accounting year was appealable and that the first appellate authority went wrong in refusing to go into that question on the ground that no appeal was available against the order under section 3(4) of the Act. The Tribunal took the view that as there are conflicting decisions of different High Courts on the point, the one which supports the assessee had to be adopted by it and held that the plea of improperly rejecting the request of change of accounting year, was available to the assessee in the appeal. Consequently, the Tribunal set aside the order of the Appellate Assistant Commissioner by its order dated 31/07/1986, directed him to entertain the appeal on that point and give a decision on the merits and thus allowed the assessee's appeal. It is from that order of the Tribunal, the above question had arisen.