Section 246A(1)(a), 253(1)- An appeal against order passed u/s. 143(3) r.w.s. 263 lies with CIT(A) u/s. 246a(1)(a) being an order passed by AO u/s. 143(3). Order passed u/s. 143(3) r.w.s. 263 does not find place in section 253(1).
Pathik Shah
Crompton Greaves Ltd vs. CIT (2016) 177 TTJ 1 (Mumbai.)
A.Y.: 2007-08
DATE OF Order: 1st February, 2016
Section 246A(1)(a), 253(1)- An appeal against order passed u/s. 143(3) r.w.s. 263 lies with CIT(A) u/s. 246a(1)(a) being an order passed by AO u/s. 143(3). Order passed u/s. 143(3) r.w.s. 263 does not find place in section 253(1).
FACTS:
The assessment of total income of the assessee company was completed by the Assessing officer (AO) vide his order dated 28th December, 2010 passed u/s. 143(3) of the act. Subsequently, the AO passed an order, dated 24th February, 2014, to give effect to an order date 6th February, 2013 passed u/s.263 of the act.
Aggrieved by the additions made in the order dated 6th February, 2013 passed u/s. 143(3) r.w.s.263 of the Act, the assessee preferred an appeal to the tribunal.
HELD:
The Tribunal observed that the assessee company has preferred a first appeal directly before the tribunal against order passed u/s. 143(3) r.w.s 263 of the Act. The tribunal noticed that an appeal against an order passed u/s. 143(3) r.w.s.263 lies with the CIT (A), U/S 246A(1)(a) of the Act, being an order passed u/s. 143(3) and not with the tribunal under section 253.Referring to the decision of the apex court in the case of CIT vs. Ashoka Engineering co. (1992) 194 ITR 645 (SC), it observed that an appeal under the Act is a statutory right which emanates only from the statute. The assessee does not have a vested right to appeal, unless provided for in the statute.
The tribunal held that it cannot adjudicate the appeal filed by the assessee, and the assessee is at liberty to file an appeal before the CIT (A) u/s, 246A (1) (a) of the Act, for adjudication on merits. It also observed that while adjudicating the condonation application, the CIT (A) shall liberally consider the fact that in the intervening period, the assessee company was pursuing the appeal with the tribunal, albeit at the wrong forum with the tribunal instead of filing the first appeal with the CIT (A) as provided in the act.
The appeal filed by the assessee was dismissed.
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