9911796707
TMI Blog1974 (4) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... th July, 1962, allowing the aforesaid claim of deductions of the assessee. The assessee, however, filed appeals against the orders of assessment and it challenged in those appeals certain enhancements made by the assessing officer as also the disallowance of certain other claims. The Deputy Commissioner of Commercial Taxes, who heard the appeals, modified the orders of assessment by a common order dated 3rd May, 1963. The assessee thereupon filed two revisional applications before the Board of Revenue challenging the appellate order. The Board of Revenue by a common order dated 11th January, 1964, gave relief to the assessee by knocking off the enhancements made in the gross turnovers for both the years and remanded the cases for fresh examination of the claims of the assessee regarding certain deductions from the gross turnover. 3.. It appears that the Board of Revenue in a different case, viz., in the revisional application filed by Rohtas Industries Ltd., had on 2nd November, 1962, rejected similar claims for sales to the aforesaid three registered dealers, namely, Jamuna Stores, Kailash Stores and Ganesh Stores. It further appears that subsequently also the Commercial Taxes T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Tribunal thought it unnecessary to give any finding on the question whether the revisional application filed by the assessee was barred by the principles of constructive res judicala. The Commissioner of Commercial Taxes thereupon moved the Tribunal for stating a case under section 25(1) of the Act and referring the aforesaid question and some other questions to this court. The Tribunal has, therefore, stated a case and made a reference for decision of only one question which has already been stated. 4.. It is a well-settled principle that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that whenever there are two orders, one by the inferior tribunal and the other by a superior tribunal passed in appeal or revision, there is a merger Irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision. It is necessary, therefore, to consider the question as to what is the scope of the appellate power which was exercised in the instant case by the Deputy Commissioner of Commercial Taxes and the revisional power which was exercised by the Board of Revenue under the provisions of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined in the course of the assessment. Thus, in appropriate cases the appellate authority may dispose of the appeal to the prejudice of the assessee by enhancing the tax and penalty. The scope of the power of the appellate authority being so wide under sub-section (3) of section 24, the Deputy Commissioner while dealing with the appeals of the dealer in the instant case was, therefore, competent to disallow the claims of deduction for sales to the three registered dealers during the period 1957-58 and to one of the registered dealers during the period 1958-59, which had been allowed by the assessing authority, and to enhance the tax. I am fortified in the view which I have taken by some of the decisions which I am presently going to refer. 5.. Under section 31(3) of the Indian Income-tax Act, 1922, the powers of the Appellate Assistant Commissioner while disposing of an appeal have been prescribed. The relevant provision is quoted below: "31. (3) In disposing of an appeal the Appellate Assistant Commissioner may, in the case of an order of assessment,(a) confirm, reduce, enhance or annul the assessment, or (b) set aside the assessment and direct the Income-tax Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee but also with regard to a matter which has been considered by the Income-tax Officer and determined in the course of the assessment. The power of the revisional authority under sub-section (4) of section 24 of the Act has not been restricted or circumscribed. The revisional authority is, therefore, quite competent to exercise all such powers which can be exercised by the appellate authority under section 24(3) of the Act. I may refer in this connection to the case of State of Orissa v. Debaki Debi and Others[1964] 15 S.T.C. 153 (S.C.). In that case the Supreme Court while considering the scope of the provisions of section 23(3) of the Orissa Sales Tax Act, 1947, observed as follows: "We need hardly add that what applies to an appeal under section 23(2) applies to a revision under section 23(3), as the powers of the revising authority and the orders it might pass are not conceived of as differing in any manner from those of the appellate authority." The Board of Revenue, therefore, while dealing with the revisional applications filed by the assessee was also competent to disallow the claim of deductions of the dealer, which had been allowed by the assessing authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement; but the question is whether this principle can apply to the Income-tax Officer's order granting registration to the respondent." In that case the order of assessment made by the Income-tax Officer was a composite order, namely, an order granting registration of the firm and making an assessment on the basis of the registration. An appeal was taken by the assessee to the Appellate Assistant Commissioner against the composite order of the Income-tax Officer. It was held by the High Court that the order of the Income-tax Officer granting registration to the respondent must be deemed to be merged in the appellate order and the revisional power of the Commissioner could not, therefore, be exercised in respect of it. The view taken by the High Court was overruled by the Supreme Court for the reason that the order of the Income-tax Officer granting registration could not be deemed to have been merged in the order of the Appellate Assistant Commissioner in an appeal taken against the order of assessment. Although on the facts of that case it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
