9911796707
TMI Blog1978 (11) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... been considered by the AAC, Special Range, Indore vide his order dt. 23rd April, 1976. Therefore, the Commissioner had no jurisdiction to revise the same. For the purpose, he relied upon the Commentary at pages 1174 and 1175 Vol. I, Law Practice of IT by Kanga Palkhiwala. Referring to some authorities mentioned in the foot-note 24, the learned authors have observed that where an AAC had passed an order disposing of an appeal against the ITO's assessment order, the Commissioner was not competent to pass an order under this section revising the assessment order and enhancing the assessment for in such a case, the original assessment order merged with the appellate order merely confirmed the same. Further, referring to CIT vs. Tejaji Fara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to the learned Judicial Member, who wrote the judgment, referring to a number of authorities, held that there would be no merger if the AAC has not decided a particular point in the appeal against the ITO's order. In this case reliance was placed upon another judgment of this very Bench in M/s Alok Paper Industries vs. ITO. B-Ward, Circle-I, Indore(7). The contention of the learned representative for the appellant in this behalf has, therefore, no force and is hereby over-ruled. 3. Coming to the merits of the appeals, the dispute relates to the amount of Rs. 7,200 and Rs. 6,000 alleged to be the incomes of the assessee for the accommodation provided by it to the office of Air India. In the statements accompanying the returns, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued that no income was liable to be assessed as no amount was recoverable under the agreement. Lastly, it was contended that the Company had been assessed at a loss for both the years in question and, therefore, there could not be said to be any prejudice to the Revenue and the ITO's orders could not be said to be erroneous in so far as they were not prejudicial to the interest of Revenue. 5. We have carefully considered all the three aspects. So far as the third matter is concerned, it is possible that the assessee may ultimately return an income to which the loss already assessed may be liable to set-off. Therefore, the mere fact that there was loss during the year in question is not sufficient to hold that the ITO s, order cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . To this extent the order of the Commissioner rather went too far and deserves to be modified. 7. But the matter does not end here. There is cl. 9 in the agreement of utilisation of the terms by the Air India which reads as under: "No reimbursement will be made by Air India in case 'the Other Party' fails to utilise part or the entire amount of transportation available u/cl. (2) of this contract." According to the assessee it has failed to utilise the amount of transportation available under this clause altogether and according to this clause nothing was now recoverable. This point was taken up before the CIT also who has observed that so far as this clause is concerned, there was no occasion for examining the same by the ITO and this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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