Income-tax---

----Reference---Assessment--Notice---Want of notice---Does not cease to be a proceeding and could be corrected ---ITO has jurisdiction to continue proceeding from stage at which illegality has occurred---Assessing Officer passing assessment order observing that assessee's representative appeared and case discussed with him---Observations of Assessing Officer factually incorrect---Tribunal finding that assessment order passed without giving notice to assessee---Assessment only legally vitiated but not void warranting annulment---Tribunal not annulling assessment---No question of law arises-- Indian Income Tax Act, 1961, S.256.

The Assessing Officer made an assessment on the assessee which was challenged in appeal before the appellate authority, who set aside the assessment order and remitted the case to the Assessing Officer with the direction to re-do the assessment after giving an opportunity of being heard to the assessee. Thereafter, "the Assessing Officer passed the assessment order de novo observing that the case was posted for hearing and that the assessee's representative appeared and the case was discussed with him. On appeal to the Commissioner (Appeals), the assessee contended that the observations of the Assessing Officer were factually incorrect inasmuch as none on behalf of the assessee appeared before the Assessing Officer and the matter was not discussed with any representative of the assessee. The Commissioner (Appeals) as well as the Tribunal accepted the contentions of the assessee. The Tribunal found that the assessment order was passed de novo by the Assessing Officer without giving any notice to .the assessee. The Tribunal, therefore, declined to refer the questions of law, namely whether the Tribunal was right in not annulling the assessment. On a reference application under section 256(2) of the Income Tax Act, 1961:

Held, that the assessment proceeding does not cease to be a proceeding under the Act merely by reason of want of notice and it would be a proceeding liable to be challenged and corrected and the Income-tax Officer has jurisdiction to continue the proceedings from the stage at which the illegality had occurred Therefore, the assessment having been made without any notice might have been legally vitiated, but that was not rendered void, warranting annulment. Therefore, no question of law arose for reference.

Estate of Late, Rangalal Jajodia v. CIT (1971) 79 ITR 505 (SC) and Guduthur Bros. v. ITO (1960) 40 ITR 298 (SC) fol.

C. Kochunni Nair for Petitioner.

N.R.K. Nair for Respondent.

JUDGMENT

OM PRAKASH, C J--By this application made under section 256(2) of the Income Tax Act, 1961, the assessee requires us to direct the Income tax Appellate Tribunal to draw up a statement of the case and refer the following questions for the opinion of this Court:

"(1) Whether the Tribunal was right in not annulling the assessment?

(2) Whether the Tribunal was right in thinking, that the fit order to be passed is only to set aside and not to annul the assessment particularly in a case where .the Assessing Officer made an untrue statement that there was discussion with the authorised representative?

(3). Whether the order only to set aside and not to annul a void assessment order is perverse and justifiable in law?"

Though the assessee has raised as many as three questions, the controversy is the same as involved in question No.l. The Assessing Officer made an assessment which was challenged in appeal before the appellate authority, who set aside the assessment order and remitted the case to the Assessing Officer with the direction to re-do the assessment after giving an opportunity of being heard to the assessee.

Thereafter, the Assessing Officer passed the assessment order .de novo observing as under:

"The case was posted for hearing Sri. Zacharia, the assessee's representative appeared and the case was discussed with him."

The assessee further carried the dispute in appeal contending that the aforesaid observations are factually incorrect, inasmuch as none appeared on behalf of the assessee before the Assessing Officer and the matter was not discussed with any representative of the assessee. Both the Commissioner of Income-tax (Appeals) and the Appellate Tribunal accepted the said contentions of the assessee that none appeared on behalf of the assessee before the Assessing Officer and the aforesaid observations are factually incorrect. The finding by the Appellate Tribunal was that the assessment order was passed de novo by the Assessing Officer without giving any notice to the assessee. On these facts,' the Appellate Tribunal declined to refer the question to this Court.

In Estate of Late Rangalal Jajodia v. CIT (1971) 79 ITR 505, the Supreme Court. observed that the lack of notice to the assessee only made the assessments defective. In this case also the assessment order was set aside on the ground that notice was not given to the assessee and, therefore, the finding was legally vitiated. The Supreme Court, therefore, held that the assessment proceeding does not cease to be a proceeding under the Act merely by reason of want of notice and it would be a proceeding liable to be challenged and corrected.

In Guduthur Bros. v. ITO (1960) 40 ITR 298, the Supreme Court, almost in the same factual background, held that the Income-tax Officer had jurisdiction to continue the proceedings from the stage at which the illegality had occurred.

In view of the aforesaid observations, we. are of the view that the assessments having been made without any notice, may have been legally vitiated, but that was not rendered void, warranting annulment.

From these facts, we do not think that any statable question arises from the decision of the Appellate Tribunal.

For the above reasons, the application is rejected.

M.B.A./30/FCApplication rejected.