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TMI Blog1983 (3) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer and was not at issue before the Appellate Assistant Commissioner, could not be revised by the Commissioner under section 39(2) as the same was time-barred from the date of the original assessment order?" 2.. The material facts giving rise to this reference, briefly, are as follows: The assessee deals in grain, cotton seeds, kerosene oil and machinery at Sanawad. In the assessment proceedings under the Act before the Sales Tax Officer, Khargone, for the period 6th October, 1962, to 30th June, 1963, the assessee claimed exemption for the turnover relating to sale of cotton seeds amounting to Rs. 93,150. The assessing authority exempted sales worth Rs. 66,360 but levied tax on sales worth Rs. 26,790 on the ground that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under section 39(2) of the Act was not barred by limitation. Aggrieved by the order passed by the Commissioner, the assessee preferred an appeal before the Board. The Board partly allowed the appeal, holding that the order passed by the Commissioner revising the order of the assessing authority was barred by limitation and thus, the levy of tax on sales worth Rs. 66,360 was set aside. Aggrieved by the order passed by the Board, the department submitted an application for making a reference and it is at the instance of the department that the aforesaid question of law has been referred to this Court for its opinion. 3.. Shri Surjeet Singh, the learned counsel for the department, contended that the order of the assessing authority had me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst to make a fresh assessment, after such further inquiry, as may be directed; or (c) pass such orders, as it may think fit." "39. (2) The Commissioner may of his own motion or on information received call for and examine the record of any proceeding under this Act, if he considers that any order passed therein by any person appointed under section 3 to assist him is erroneous in so far as it is prejudicial to the interests of the revenue, he may after giving the dealer or persons an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify including an order enhancing or modifying, the assessment, or cancelling the assessment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment order were not agitated by either party, though it was open also to the revenue to agitate them or the A.A.C. to consider them suo motu and no decision of the A.A.C. is, therefore, made in respect of the remaining items, the I.T.O's order merges with the appellate order of the A.A.C., only to the extent it was considered and decided by the A.A.C., but the matters which are not covered by the appellate order of the A.A.C. are left untouched and to that extent the I.T.O.'s assessment order survives, permitting exercise of revisional jurisdiction by the Commissioner under section 263 of the Income-tax Act, 1961. It necessarily follows that the items considered and decided by the A.A.C. in his appellate order are beyond the scope of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action under section 43 of the Act by imposing penalty while disposing of the appeal. It is true that there is conflict in the two decisions of this Court in Commissioner of Sales Tax v. Jammatlal Prahaladrai [1983] 54 STC 392; (1982) 15 VKN 352 and Commissioner of Sales Tax v. Himmatlal & Co. [1981] 47 STC 415; [1981] 14 VKN 245. But the question arising in this case is slightly different and is covered by the two Full Bench decisions of this Court in Commissioner of Income-tax v. R.R. Bawarilal [1982] 137 ITR 91; 1982 MPLJ 296 (FB) and Commissioner of Income-tax v. Mandsaur Electric Supply Co. Ltd. [1983] 140 ITR 677 (FB). It is, therefore, not necessary to refer the question arising in this case to a larger Bench as was urged on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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