Radhakrishna Mcnon, J.:— The Revenue is before us. The question referred for our decision reads:—
“Whethcr, on the facts and in the circumstances of the case, the Tribunal was right in holding that the appeal filed by the asscssce before the Appellate Assistant Commissioner was maintainable inspiic of the fact that the asscssce did not file any objections to the draft assessment order under S. 144B of the Income tax Act, 1961?”
2. The year of assessment is 1978-79.
3. As the asscssing authority was of the view that the income returned did not reflect the actual income received by the assessee, he proposed variation thereto keeping in view the procedure prescribed under S. 144B of the Income-tax Act.
4. Theassessee did not fileany objections to the proposed variation. Therefore the assessing authority estimated the income at Rs. 60,900/- and completed the assessment under S. 143(3) of the Income-tax Act.
5. The asscssce filed an appeal against the said order of assessment. The Revenue contended before the appellate authority that the appeal is not maintainable since theassessee had notfilcd any objections to the proposed variation. Without going into the merits of this contention the Appellate Assistant Commissioner allowed the appeal in part and reduced the addition by Rs. 23,030/-. The Revenue filed a second appeal before the Appellate Tribunal. The short point urged before the Appellate Tribunal was that the appeal before the Appellate Assistant Commissioner was not maintainable in view of the fact that the assessee had not filed any objections to the variation suggested by the assessing authority under S. 144B of the Income-tax Act. The Appellate Tribunal, relying on a decision of the Bombay Bench ‘C (Special Bench) of the Income tax Appellate Tribunal in ITA No. 380 (Bom.)/80 dt. 24-5-1982 rejected theabove contention. The Revenue thereupon moved an application under S. 256(1) and sought reference of the question aforesaid, to this court for the opinion of this court.
6. The counsel for the Revenue reiterated the contention he had raised before the Appellate Tribunal that the appeal before the Appellate Assistant Commissioner was not maintainablc as the asscssce failed to file objections to the variation in the income proposed under S. 144B. The question, it is further submitted, therefore requires to be answered in favour of the Revenue.
7. We are not impressed by this argument. That the assessment is under S. 143(3) of the Income-lax Act cannot be disputed. If that be the position the appeal against such an assessment is maintainable (See S. 246(c)). Merely because the assessee failed to file his object ions to the variation suggested in the notice under S. 144B, it cannot be said that the assessment ceases to be an assessment under S. 143(3). If is relevant in this context to note that an appeal even against a best judgment assessment under S. 144 is provided for under S. 246 of the Income-tax Act. It is clear from the language employed in S. 246 thatif the asscssce is aggrieved by an assessment made under S. 143(3), whether the same is made following the procedure prescribed under S. 143 or following the procedure prescribed under S. 144B, he is entitled to file an appeal against the said assessment. The appeal before, the Appellate Assistant Commissioner, in our view, therefore is maintainable.
8. In the light of the discussion above the question requires to be answered in favour of the assessee and against the Revenue. Accordingly we answer the question in the affirmative and against the Revenue. No costs.
9. A copy of this judgment under the signature of the Registrar and the seal of this Court will be forwarded to the Incometax Appellate Tribunal, Cochin Bench.
10. Dismissed.