|QUERY:||The assessee filed his return of income for A.Y. 2008-09 returning profit on sale of shares/units of mutual funds under the head ‘Income from Business’. The Assessing Officer completed the assessment u/s. 143(3) by reclassifying transactions of purchase and sale during the same day as Speculative Transactions. He did not allow interest claimed which was debited to P & L Account. Subsequently, he issued a notice u/s. 154 of the Act proposing to disallow interest claimed u/s. 14A on the ground that assessee has also earned dividend income. The assessee responded to the show cause by stating that this is not mistake apparent on the record but without prejudice also enclosed with the letter a working amount disallowable under Rule 8D. Subsequently, on the oral request of the AO, a further letter was filed giving consent to the AO to pass an order u/s. 154 and disallow amount u/s. 14A. The AO instead of disallowing the amount as per working filed, disallowed the entire amount debited to P & L Account. Can the assessee now file an appeal on the ground that the consent cannot confer jurisdiction on the AO when there is none under the statute? Kindly explain the principle that there is no estoppels against law.|
|ANSWER:||Yes, the right of appeal has been specially conferred on the assessee by the statute and it is unfettered right which cannot be taken away by any understanding.
A right of appeal is available only to an assessee who is aggrieved by the order sought to be appealed from. It has been held that where the assessee has agreed to an order proposed by the Assessing Officer, he cannot be said to be aggrieved thereby but this is not a proposition that is universally correct, for example, it will be open to an assessee to appeal even in such a case if he established from the material on the record, that the admission is not binding on him. Any person who really is aggrieved by the assessment order and on whom the burden of tax will fall will be entitled to prefer an appeal so that the burden can be entirely reduced or lessened. [see CIT v. Hyderabad Secunderabad Food Grains Association Ltd. 175 ITR 574 (AP)].
|EXPERT:||CA. H. N. Motiwalla|
|SECTION(S):||143(3), 14A, 154, 246A|
|CATCH WORDS:||Appeals, disallowance, income from business, Speculative Transactions, Unfettered right|
Opinion Of Eminent Legal Luminaries On Controversial Issues
Whether To Appeal Against The Assessment Order Is Unfettered Right Of The Assessee?
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