ORDER 1. Whether the Commissioner (Appeals) exercising appellate jurisdiction under Section 246 of the Income Tax Act against an order passed under sub-section (3) of Section 143 of the Act is vested with the power to conduct an enquiry either directly or through the Assessing Officer for the purpose of deciding the appeal on merits, is the primary issue raised in these two writ petitions. The facts: 2. The petitioner is engaged in the business of Software Training and Development. The subject matter relates to the assessment years 2007-2008 and 2008-2009. The petitioner filed its returns of income for these two years. The income tax department conducted a survey at the premises of the petitioner under Section 133-A of the Income Tax Act. The respondent thereafter initiated proceedings under Section 147 of the Act by issuing notice under Section 148 of the Income Tax Act. It was followed by a notice under Section 143(2) of the Act. The petitioner vide its letter dated 28 March 2013 requested the respondent to grant an opportunity to cross examine the persons whose statements have been recorded during the course of survey. However without giving any such opportunities the respondent passed orders on 30 March 2013 under Section 143(3) of the Income Tax Act. Those two orders are under challenge. Summary of Submissions: 3. The learned counsel for the petitioner contended that the impugned orders are violative of the principles of natural justice. The respondent failed to provide an opportunity to cross examine the persons, whose statements were relied on for passing the assessment orders. The learned counsel submitted that the appeal remedy is not efficacious in this matter in view of the absence of power to remit the matter for giving an opportunity for cross examination. According to the learned counsel, it is not possible for the appellate authority to grant the relief under Section 152 of the Income Tax Act and as such, writ petition is the only remedy. 4. The learned Standing Counsel for the Income Tax Department contended that the initial notice was given as early as on 28 September 2011. The petitioner was fully aware of the statutory period. The petitioner with a clear knowledge that orders should be passed under Section 143(3) before 31 March 2013 on account of limitation, kept the matter pending and on 25 March 2013 issued a letter seeking reasons. The petitioner was fully aware of the statutory period. The petitioner with a clear knowledge that orders should be passed under Section 143(3) before 31 March 2013 on account of limitation, kept the matter pending and on 25 March 2013 issued a letter seeking reasons. Reasons were furnished on 25 March 2013 and thereafter orders were passed. According to the learned counsel, the petitioner has already filed an appeal and it is for the appellate authority to decide all the questions including the alleged failure to give an opportunity of hearing. Discussion: 5. The factual matrix shows that the petitioner has already filed statutory appeals, before the Commissioner of Income Tax (Appeals) III, Chennai. The appeals are now pending. 6. The petitioner has filed these two writ petitions primarily on the ground that the appellate authority has no power to remit the matter to the assessing officer to grant relief under Section 152 of the Act. 7. The jurisdiction and power of the appellate authority is therefore an issue in these writ petitions. The Statutory Framework: 8. Chapter XX of the Income Tax Act deals with appeals to the Deputy Commissioner (Appeals) and Commissioner (Appeals) 9. Section 246 of the Income Tax Act provides that appeals would lie before the Commissioner (Appeals) against an order passed under Section 143(3) or 147 of the Income Tax Act. 10. Section 250 of the Income Tax Act deals with the procedure in appeal. Sub-section (4) of Section 250 reads thus: “The Commissioner (Appeals) may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the Assessing Officer to make further inquiry and report the result of the same to the Commissioner (Appeals).” 11. Section 251 provides the power of the Commissioner (Appeals). Section 251(aa) reads as follows: “251(1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers:- (a)........ (aa) in an appeal against the order of assessment in respect of which the proceedings before the Settlement Commission abates under Section 245-HA, he may, after taking into consideration all the material and other information produced by the assesee before, or the results of the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceedings before it and such other material as may be brought on his record, confirm, reduce, enhance or annul the assessment.” 12. The petitioner is in the business of providing computer education and allied services. The business premises of the petitioner was subjected to a survey under Section 133-A of the Income Tax Act. The Inspecting Officials found that the petitioner has made bogus purchases towards fixed assets. During the course of survey, sworn statements of some of the employees were recorded. Since the Assessing Officer had reasons to believe that income had escaped assessment within the meaning of Section 147 of the Income Tax Act, the case was reopened and a notice under Section 148 was issued on 28 September 2011. 13. The petitioner pursuant to the notice submitted a reply that the original return filed earlier should be treated as returns filed in response to the notices under Sections 148 of the Income Tax Act. 14. The Assessing Officer thereafter issued notices under Sections 143(2) of the Income Tax Act. The notices were served on 28.9.2012. Since there was no response, notices under Section 142(1) were issued on 14.2.2013 calling for details. 15. The petitioner failed to respond to the notices and the same resulted in issuing a proposal for assessment under Section 144 of the Income Tax Act. The petitioner received the notices on 13.3.2013. 16. The petitioner submitted a letter on 20.3.2013 seeking reasons for reopening the assessment and sought time till 25.3.2013 to furnish the details. It was followed by another letter dated 25.3.2013 to furnish the reasons. The reasons were furnished on 25.3.2013. Thereafter objection was filed on 28.3.2013. 17. The Assessing Officer having found that the petitioner kept the matter pending from February 2012 and that the expiry of the statutory period for completing assessment was on 31.3.2013, passed the Assessment Order on 30.3.2013. 18. The petitioner alleges denial of opportunity of cross examination by citing the letter dated 28.3.2013 submitted for giving such an opportunity. 19. The Assessing Officer by placing reliance on the notice dated 28.9.2011, has taken up a contention that nothing prevented the petitioner from seeking reasons or to avail the opportunity of cross examination by approaching him at an early date without waiting till the end of the limitation period. 20. The petitioner has already filed statutory appeals before the Commissioner (Appeals). 21. 20. The petitioner has already filed statutory appeals before the Commissioner (Appeals). 21. The learned counsel for the petitioner very fairly submitted that in case this Court clarifies the legal position with regard to the power of the appellate authority to grant relief under Section 152 of the Income Tax Act, the petitioner would prosecute the appeals. 22. Section 251 of the Income Tax Act conferred wide powers on the Commissioner (Appeals). The Commissioner is empowered, in a case of appeal, against an order of assessment, to confirm, reduce, enhance or annul the assessment. This would make it clear that the appeal is a continuation of original proceedings. Section 251(1)(c) gives power to the Commissioner to pass such orders as he thinks fit in other cases. The Commissioner is therefore at liberty to pass all such orders which could be passed by the Assessing Officer. 23. Section 250(4) provides for remitting the matter to the Assessing Officer to conduct an enquiry and to resubmit the papers with his report for deciding the appeals on merits. 24. This provision is analogous to Order 41 Rule 25 of the Code of Civil Procedure, which gives power to the appellate court to frame issues and refer the same for trial to the Court whose decree the appeal was preferred. 25. The petitioner has come up with a grievance that the Assessing Officer failed to give an opportunity of cross examination. In case the petitioner is in a position to demonstrate that in the facts and circumstances of the case, the Assessing Officer should have provided the opportunity and the request was made within a reasonable period, it is open to the Commissioner to entertain such a request and to refer the matter to the Assessing Officer to give an opportunity and to sent back the records thereafter for deciding the matter on merits. The apprehension raised by the petitioner therefore has no basis. Conclusion: 26. Therefore it is clear that the Commissioner (Appeals) is vested with the power to conduct an enquiry either by himself or through the Assessing Officer during the currency of appeal and thereafter to decide the appeal on merits. 27. Since the petitioner has already filed appeals and in view of the clarification given above, there is no need to entertain these writ petitions. 28. The writ petitions are disposed of with the above observation. 27. Since the petitioner has already filed appeals and in view of the clarification given above, there is no need to entertain these writ petitions. 28. The writ petitions are disposed of with the above observation. Consequently the connected Mps are closed. No costs. Petitions disposed of.