9911796707
TMI Blog2002 (5) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... rest to the partners, the depreciation on generator at 30 per cent. and investment allowance of Rs. 7,554 to the firm in order to fulfil the conditions laid down under section 32A. Thus, the Commissioner of Income-tax has rightly exercised the jurisdiction under section 263 of the Income-tax Act for the purpose of revising the order of the Income-tax Officer on the aforesaid items. - Thus, the question referred is decided in favour of the Revenue and against the assessee. - - - - - Dated:- 9-5-2002 - Judge(s) : N. N. MATHUR., D. N. JOSHI. JUDGMENT The judgment of the court was delivered by N.N. MATHUR J.-The Income-tax Appellate Tribunal, Jaipur, has made the instant reference under section 256(2) of the Income-tax Act, 1961, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. In response to the show cause notice, the assessee put in appearance and raised the objection, inter alia, on the ground that there has already been an order of the Commissioner of Income-tax (Appeals) against the assessment order in question having the effect of full merger of the order of the Income-tax Officer in the appellate order of the Commissioner of Income-tax (Appeals). Thus, it was contended that the Commissioner of Income-tax had no jurisdiction to revise the order of the Income-tax Officer. The contention did not find favour with the Commissioner of Income-tax. He finally set aside the order of the Income-tax Officer with the direction that the Income-tax Officer should add the claim of the assessee regarding claim of b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There was conflict of judicial opinion as to whether after an order has been subjected to the first appellate order, the points that were neither raised in appeal nor dealt with by the first appellate authority do, or do not, merge in the appellate order and thus, may or may not be, subjected to that extent, by the Commissioner, to an order of variation or direction therefor under section 263(1) order. Some of the High Courts took the view that the doctrine of merger would operate only on matters, which were the subject-matter of a decision of the first appellate authority and has no application to the matters, which have not been touched by that authority. It was expressed that such untouched matters may be subjected to an order under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late authority. But, the same principle will not be applied where a decision of an inferior authority does not come in for consideration of the appellate authority and there is no decision of the appellate authority either by way of affirmance or by way of reversal or modification on the point decided by the inferior authority. The apex court in CIT v. Shri Arbuda Mills Ltd. [1998] 231 ITR 50 has held that the consequence of the amendment made with retrospective effect is that the powers under section 263 of the Commissioner shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in an appeal. In the instant case, it is not in dispute that the Commissioner of Income-tax (Appeals) had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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