2004 (8) TMI 39 - HC - Income Tax

Order of rectification - After completing the assessment for the block period, AO noticed that certain additions were required to be made as per the findings recorded in the assessment order which remained omitted while computing the total income. - due notice, the Assessing Officer rectified the order - We find merit in the contention raised on behalf of the appellant that the doctrine of merger could not be invoked to deprive the appellant of his remedy against the order of rectification when the said order had not been taken cognisance of by the Tribunal while deciding the appeal against the original assessment. - Tribunal was required to take a decision on the correctness of the order of rectification on the merits. - Application of this doctrine depends on the nature of the appellate or revisional order in each case Held that the appellant had a right to be heard on the merits in the appeal filed against the order of rectification. Accordingly, this appeal is allowed and the order of the Tribunal under appeal is set aside

Summary

Issues:
Appeal against order of rectification during pendency of appellate proceedings against original assessment, application of doctrine of merger, right of appellant to challenge order of rectification, necessity of bringing order of rectification to the notice of the Tribunal, doctrine of merger not universally applicable.

Analysis:
The judgment pertains to an appeal filed by the assessee against the order of the Tribunal dated June 19, 2003. The assessment for the block period April 1, 1985 to November 23, 1995, was completed initially, but certain additions were later identified by the Assessing Officer and rectified in June 1997. The assessee appealed against this rectification order, which was dismissed on November 7, 2003. The Tribunal observed that the order of rectification merged with the original assessment order, implying that the assessee could have challenged it during the appellate proceedings against the original assessment. However, the appellant's counsel argued that the doctrine of merger should not deprive the appellant of the right to challenge the rectification order separately, especially when it was not considered during the appeal against the original assessment.

The Tribunal held that the doctrine of merger would apply, and the remedy against the order of rectification should have been sought during the appeal against the original assessment itself. The Revenue's counsel supported this view. Nevertheless, the High Court found merit in the appellant's contention that the doctrine of merger could not be invoked when the Tribunal did not consider the rectification order during the appeal against the original assessment. The Court emphasized that the appellant had the right to challenge the rectification order separately and that the doctrine of merger is not universally applicable. It highlighted the importance of bringing all relevant orders to the Tribunal's notice for a comprehensive decision.

The Court referred to previous decisions to support its stance that the doctrine of merger is not rigid and must be applied based on the specific circumstances of each case. It emphasized that the appellant should have had the opportunity to be heard on the merits of the appeal against the rectification order. Consequently, the High Court allowed the appeal, set aside the Tribunal's order, and remanded the matter to the Tribunal for a fresh decision considering all relevant aspects in accordance with the law.