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TMI Blog1968 (5) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Act, 1922, by rectifying a mistake stated to be apparent from the record. The petitioner is a private limited company whose business consists mainly of undertaking and executing works contracts. It was also running a cashewnut factory till October, 1956. For the assessment year 1957-58 it was assessed to income-tax on a total income of Rs. 99,125 as per the assessment order evidenced by exhibit P-1 dated December 31, 1957. Proceedings were thereafter initiated against the petitioner by the Income tax Officer, Ernakulam, under section 23A of the Indian Income-tax Act, 1922, on the ground that in respect of the assessment year 1957-58, it had been found out that the company had not declared the prescribed minimum dividend in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidend declared. This is not correct. The additional super-tax under section 23A is leviable on the full distributable income less actual dividend declared. " The petitioner was called upon to appear before the officer in person or by authorised representative on December 6, 1965, in case he wished to be heard in the matter, or in the alternative to submit his written representation if he did not desire to have a personal hearing. The petitioner accordingly put in written objections evidenced by exhibit P-5 and also availed himself of the opportunity for personal hearing. He objected to the jurisdiction of the Income-tax Officer to initiate proceedings under section 154 for rectifying the alleged mistake and also contended that on the mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment or of refund or any other order passed by him ; (b) the Appellate Assistant Commissioner may amend any order passed by him in appeal under section 250 ; (c) The Commissioner may amend any order passed by him in revision under section 263 or section 264. (2) Subject to the other provisions of this section, the authority concerned-- (a) may make an amendment under sub-section (1) of its own motion, and (b) shall make such amendment for rectifying any such mistake which has been brought to its notice by the assessee, and where the authority concerned is the Appellate Assistant Commissioner, by the Income-tax Officer also. (3) An amendment, which has the effect of enhancing an assessment or reducing a refund or otherw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Madras High Court in A.Haji Abdul Shulkoor and Co. v. State of Madras : " Whether it is a proceeding in a civil court or a proceeding before a quasi-judicial tribunal, it is settled law, that when the order of the lower court or the subordinate authority is confirmed by the appellate court or appellate authority, the original order or decree is; superseded and the only court that can amend thereafter is the appellate court. It is sufficient to refer to the Full Bench decision in Pichuvayyangar v. Seshayyangar in which it was held that the jurisdiction of the court of first instance to amend the decree was ousted by the confirmation of the decree on appeal." In Sundaram Co. v. First Additional Income-tax Officer, the same High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation, reversal or variation of the decree of the court of first instance in appeal from the decree, it is the appellate court alone that can amend the decree : see Mulla's Civil Procedure Code, 12th edition, page 462. There is no reason why the same principle should not apply as among the hierarchy of authorities under the Income-tax Act. The Income-tax Officer's original order adding by estimate a sum of Rs. 30,000 to the book profits of the Alleppey branch was, without doubt, superseded by the order of the Appellate Assistant Commissioner confirming it in appeal and that appellate order itself got merged in the final order of the Appellate Tribunal varying it and fixing Rs. 12,000 for the purpose of the addition. The only authority whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which could not be regarded as having been the subject-matter of the appeal to the Tribunal and had not been actually considered in that appeal. This decision is clearly distinguishable on facts because it is seen that the reasoning of the learned judge is rested mainly on the ground of the restricted nature of the jurisdiction and powers of the Income-tax Appellate Tribunal as conferred by section 33(4) of the Indian Income-tax Act, 1922. he appellatte jurisdiction conferred on the Appellate Assistant Commissioner by section 31 of the Indian Income-tax Act, 1922, is much wider than that conferred on the Tribunal under section 33 and is not subject to the restrictions referred to by the learned judges ; or (nor?) can it be said in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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