MR.BHANULAL B KANANI,MUMBAI vs. ITO 32(1)(3), MUMBAI

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ITA 1125/MUM/2019Status: DisposedITAT Mumbai13 October 2020AY 2011-123 pages

In favour of the Revenue: the assessee's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that an assessment order passed under Section 144 r.w.s 147 is not directly appealable before the ITAT. The correct remedy is to appeal before the Commissioner of Income Tax (Appeals) under Section 246/246A.

What were the facts?

The assessee filed an appeal before the ITAT against an assessment order passed under Section 144 r.w.s 147. The Tribunal's registry pointed out several defects, including short appeal fee and missing documents. The assessee acknowledged the assessment order but failed to rectify the defects.

What were the issues?

Whether an appeal against an assessment order under Section 144 r.w.s 147 is maintainable before the ITAT directly, or if the assessee must first approach the CIT(A).

Which sections of the Income-tax Act were involved?

Section 144,Section 147,Section 253,Section 246,Section 246A

AI-generated summary — verify with the full judgment below

PER SAKTIJIT DEY, JUDICIAL MEMBER; 1. When the appeal was called for hearing, no one was present for the assessee to represent the case. Accordingly, I dispose of the appeal ex-parte qua the assessee after hearing the ld. Departmental Representative. 2. I have heard the ld. Departmental Representative and perused the material available on record. On perusal of record and more particularly, the memorandum of appeal in Form-36 and accompanying documents, it is noticed that the assessee has preferred the present appeal against the assessment order passed on 12.12.2018 under section 144 r.w.s 147 of the Act, 1961. It is further noticed, the registry of the Tribunal had issued a notice dated 28.02.2019 to the assessee pointing out the following defects: 1. Appeal fee is short by Rs. 9000/-.

Mum 2019-Mr. Bhanulal B. Kanani

2.

Order of CIT(A) under section 250 not filed.

3. Grounds of appeal before the CIT(A) not filed.

4. Form 35 not filed/not filed in duplicate.

3.

In response to the said notice, the assessee in letter dated 02.04.2019 has again accepted the fact that the present appeal has been preferred against the assessment order passed under section 144 r.w.s. 147 of the Act.

1.

Undisputedly, an assessment order passed u/s. 144 r.w.s 147 of the Act is not an appealable order under section 253(1) of the Act. On the contrary, against the assessment order passed under section 144 r.w.s. 147 of the Act, the assessee has a remedy by way of appeal before ld. Commissioner of Income Tax (Appeals) under section 246/246A of the Act. Instead of availing such remedy, the assessee has directly filed the appeal before this Tribunal. Prima facie, the aforesaid appeal is not maintainable.

Accordingly, I have no hesitation in dismissing the appeal in limine without being admitted.

4.

In the result, appeal of the assessee is dismissed.

Order pronounced by placing in the notice board as per rule 34(4) of the Income Tax (Appellate Tribunal) Rules on 13th October 2020.

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