9911796707
TMI Blog2005 (2) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... d by seized parcha Nos. 4 and 5 valued at ₹ 17,612. (ii)Investment in 25 bags of Zeera as evidenced by parcha Nos. 6 and 7 discovered during survey of the assessee s own premises and business premises @ 5 per cent- ₹ 22,499. (iii)Gross profit on sales outside the books of account of the assessee as evidenced by the investment in Zeera mentioned above estimated by the ITO at ₹ 2 lakhs, ₹ 10,000. 3. However, while computing the total income of the assessee, the ITO omitted to add ₹ 17,612 specifically directed by him to be added to the assessee s total income vide para 3 of his order. 4. It appears that the Sales Tax Department at the time of survey of the assessee s shop recovered certain loose purchas namely, parcha Nos. 4, 5, 6 and 7. On the basis of these parchas and after giving opportunity of hearing to the assessee, the Sales-tax Officer rejected the account books of the assessee and made additions by 16 lakhs in the turnover of the dealer. The said order was confirmed by the A.C. (J) in appeal filed by the assessee under the Sales-tax Act. However, in further appeal/revision before the Addl. Judge (Revision) Sales Tax it was held by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by ₹ 1,90,000. Moreover, keeping in view the past history of the appellant s case, the ITO is directed to apply a rate of 3.2 per cent which means an addition of ₹ 6,080. The appellant thus gets a relief of ₹ 26,490. 6. After passing of the aforesaid order, the ITO initiated proceedings under section 154 of the Act, giving rise to the present reference, on the basis that the income of the assessee should be increased by ₹ 17,612 vide para 3 of the original assessment order. He was of the view that by mistake while computing the income, this amount was left to be added in the total income of the assessee and being arithmetical mistake, the order was liable to be rectified. He, accordingly, after rejecting the objections of the assessee rectified the order and made addition of ₹ 17,612 in the income as indicated above. This order was sustained by the AAC in appeal. The AAC was of the opinion that the original order dated 19th March, 1985 suffered a mistake which was apparent from the record and the amount of ₹ 17,612 was clearly mentioned in para 3 of the assessment order and was omitted to be included in the computation due to oversight. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1964 w.e.f. 6-10-1964 and it has been held that the said insertion is procedural and clarificatory in nature. It talks about any matter . Any matter in our opinion, means the subject-matter of the appeal. If the point, in issue was directly and subsequently in issue before an appellate or revisional authority, or the effective decision of the appeal or revision, as the case may be, the phrase any matter will embrace it, and the principle of merger will be attracted. 10. In the present case the dispute with regard to the determination of total income of the assessee/respondent with respect to escaped turnover of zeera as deducted by the Sales tax Department was very much in issue before the ITO as well as before the AAC. The Sales Tax Department treated the concealed purchases on the basis of parcha Nos. 4, 5, 6 and 7 relating to zeera. The Sales-tax Officer was of the view that parcha Nos. 4, 5, 6 and 7 established that the assessee had made purchases from different parties and those purchases have not been disclosed in the account books. These parchas related to concealed or suppressed purchases of zeera. However, ultimately the Additional Judge (Revision) as well as High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by the Tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be in force. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of confirmation or affirmance of the decision of the Tribunal by the appellate authority, the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement. But if an order is specifically non-appealable it would remain in operation although an appeal in the same proceeding has been taken and decided. 12. It may be noted here that section 251 of the Act confirms the appellate jurisdiction upon the Appellate Assistant Commissioner and under clause (a) of sub-section (1) of section 251 it has been provided that in an appeal against an order of assessment the Appellate Assistant Commissioner may enhance the assessment. The appellate powers of the Appellate Assistant Commissioner are as wide and as extensive ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
