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TMI Blog1989 (3) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the Commissioner of Income-tax held the view that the payment of Rs. 8700 should not be treated as advance tax. That order apparently was not made available to the predecessor C.I.T. (Appeals), who vide his order dated 28-7-83 entertained the additional ground made by the assessee before him, contending that the I.A.C. (Assessment) erred in holding that the payment of advance tax of Rs. 8700 on 31-3-1977 was not payment of advance tax. The then C.I.T. (Appeals) held that this controversy was settled and the payments made during the financial year though not on the dates specified under section 211 should be treated as payment of advance tax. He, therefore, directed the Assessing Officer to treat this amount as payment of advance tax and to allow interest under section 214. It is not clear and it has not been shown before us whether the order of the predecessor C.I.T. (Appeals) dated 28-7-83 was final or otherwise. 4. The Assessing Officer gave effect to the order of the predecessor C.I.T. (Appeals) in respect of other reliefs allowed in quantum. As far as payment of Rs. 8700 made on 31-3-77 was concerned, the Assessing Officer mentioned that the same was not treated as adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides, it is seen that the C.I.T. (Appeals) has not entertained the ground of appeal by the assessee not on the ground that the claim was not appealable, for interest under section 214. But the C.I.T. (Appeals) has dismissed the appeal by the assessee on the point as the issue was decided by the Commissioner of Income-tax, N.E. Region, Shillong, under section 264. In our opinion, a right of the assessee to approach the Commissioner of Income-tax under section 264 and the right of appeal by the assessee before the first appellate authority, are independent and are alternative. Under section 264, the Commissioner of Income-tax has the power to revise an order subject to one limitation only that is to say that his order should not be prejudicial to the assessee. The assessee may feel aggrieved with certain points dealt with in the assessment order and which was considered to be prejudicial to the assessee. In such a situation, the assessee can move the Commissioner of Income-tax under section 264 for relief. The power of the Commissioner of Income-tax to revise an order, is very wide. But if the Commissioner of Income-tax declined to accept the claim of the assessee under section 264 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to have arisen out of the order of the C.I.T. (Appeals), for our adjudication. 10. The right of an appeal is a substantive right cannot be lightly ignored or assumed, as held by the Hon'ble Delhi High Court in the case of Unique Motors General Insurance Co. v. S. K. Vaiyapuri AIR 1970 Delhi 90. In fact, the Hon'ble Supreme Court in the case as reported in 29 ITR, page 615 held that the right of appeal is a substantive right. As pointed out earlier, the stand taken by the revenue is that the ground of appeal by the assessee before the C.I.T. (Appeals) was not entertainable nor appealable. But the present CIT (Appeals) in the impugned order had not declined to entertain the appeal by the assessee on that ground, but on the ground that the Commissioner of Income-tax has held a different view under section 264 dated 31-1-81. 11. In this connection, we may refer to the decision in the case of Prime Products (P.) Ltd. v. CIT [1979] 116 ITR 473 (All.), in which on the facts of that case it was held that the order of the ITO which was in accordance with the direction of the A.A.C., no appeal lies. But it is a different matter altogether when the ITO did not give effect to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal order of the ITO had merged with the order of the AAC. Moreover, the predecessor CIT (Appeals) has given his opinion which has been discussed by us in the earlier preceding paragraph that this point of controversy has been settled and that was why he gave appropriate direction to the Assessing Officer at that time. As far as the material facts are available before us, it is seen that the order of the predecessor CIT (Appeals) had become final and conclusive and is binding on the Assessing Officer. 14. On the peculiar circumstances of the case, being of its kind, we consider that the matter should be restored back to the present CIT (Appeals) for fresh disposal in accordance with law. The CIT (Appeals) should verify whether the order of his predecessor CIT (Appeals) dated 28-7-83 in appeal No. Dib-25/80-81 has become final and conclusive, as that order of the predecessor CIT (Appeals) would be otherwise binding on the Assessing Officer. It is not open to the Assessing Officer to ignore the ruling of the higher authorities as otherwise the system of dispensation of justice would be frustrated and the system itself would be destroyed. The Assessing Officer under section 251 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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