Section 144B Is Not Section 144

The Commissioner (Appeals) set the assessment aside and sent it back to the Assessing Officer to verify a capital gains computation. It reads like housekeeping. It was an order he had no power to make, and the legal grounds the assessee had raised were still sitting undecided when he made it.

On 30 September 2026, in Mehboob Khan v. Assessing Officer, ITA No. 621/Agr/2026, ITAT Agra set that order aside and sent the appeal back to the Commissioner (Appeals) — not to the Assessing Officer — following the Delhi High Court in Akasaki Technology (P) Ltd v. PCIT, ITA No. 241/2025, decided 27 November 2025.

A power that was taken away, and partly given back

This is the part that is being got wrong, and the dates matter.

Until 2001 the Commissioner (Appeals) could set aside an assessment and refer the case back for a fresh one. The Finance Act 2001 removed that power with effect from 1 June 2001. What was left in section 251(1)(a) is the power to confirm, reduce, enhance or annul — decide the appeal, in other words, rather than return it.

A proviso inserted with effect from 1 October 2024 restored the power in one situation only: where the appeal is against an order of assessment made under section 144.

That is the whole of it. One sub-section, one exception.

Section 144 is not section 144B

The assessment in this case was framed under section 147 read with section 144B. The Commissioner (Appeals) remanded it citing the proviso to section 251(1)(a).

But section 144 is best judgment assessment — where the assessee has not filed, not complied, or not produced. Section 144B is the faceless assessment procedure, the machinery through which a regular assessment is now conducted. A 147/144B assessment is a reassessment carried out faceless. It is not a best-judgment assessment, and the proviso does not reach it.

The numbering does the damage. Two provisions a letter apart, one of which opens a door that the other leaves shut.

The second defect, which is the worse one

The assessee had raised pure legal grounds before the Commissioner (Appeals): that jurisdiction was wrongly assumed under section 147 when it should have been section 153C, and that the initiation rested on borrowed satisfaction.

Those were not decided. The Commissioner (Appeals) went straight past them and sent the file back for verification of a short-term capital gain figure.

That is the wrong way round. If the reopening was bad, there is no assessment to verify. Deciding the arithmetic while the jurisdiction is open spends everyone's time on a computation that may never have been competent in the first place.

What Akasaki actually decided

The Delhi High Court held that where no valid order under section 144 had been passed, the matter could not be remanded to the Assessing Officer by the Commissioner (Appeals) — the more so where jurisdictional grounds had been raised before him.

And then the part worth memorising, quoted by the Tribunal:

Since an infirmity has arisen at the level of the CIT(A), who was exercising jurisdiction under Section 251 of the Act, the issue raised need to be decided by the CIT(A) and not by the AO.

The defect was the appellate authority's. So the cure is the appellate authority's. The High Court set aside both the Tribunal's order and the Commissioner's, and sent the appeal back to the Commissioner (Appeals) to decide afresh.

ITAT Agra did the same thing here: the order of 24 December 2025 was set aside and the matter restored to the Commissioner (Appeals), to be decided on the legal grounds.

If you are holding an order like this

• Check what the assessment was framed under. If it is not section 144, the Commissioner (Appeals) had no power to remand it, whatever the order says it was exercising.
• Check the date. The proviso runs from 1 October 2024. For an appellate order before that, there was no remand power at all.
• List the legal grounds you raised and find them in the order. Grounds on jurisdiction — section 147 against section 153C, borrowed satisfaction, sanction under section 151, limitation — have to be dealt with, not deferred.
• Ask for the right relief. The appeal goes back to the Commissioner (Appeals), not to the Assessing Officer. Asking the Tribunal to remand to the Assessing Officer repeats the error you are complaining about.
• Do not let the delay stop you. The appeal in this case was 162 days late, from a villager who had been ill, and the Tribunal condoned it on the medical papers.

The related question of what a reassessment notice itself has to satisfy before any of this arises is taken up in Six Days Is Not Seven.

This note is general information drawn from reported decisions and the statute, not advice on your matter. Each order turns on its own record.