9911796707
TMI Blog1992 (3) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner's order and that the Commissioner of Income-tax had no jurisdiction under section 263 of the Income-tax Act in this case ? " The assessment under section 143(3) of the Income-tax Act, 1961, in respect of three years was finalised and, thereafter, on perusal of the record, the Commissioner of Income-tax was of the view that the assessment orders framed were prejudicial to the interests of the Revenue. Notices were issued to the assessee and, after hearing the assessee, the said assessment orders were set aside with a direction to make fresh assessment in accordance with law keeping in view the observations made in the order of the Commissioner of Income-tax. Various points were disputed therein including the sale of shares which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a merger of the assessments order with that of the appellate order, irrespective of the fact that the said points were not the subject-matter of dispute in the appeals. The Income-tax Appellate Tribunal has held that there is no dispute that the assessments concerned were the subject-matter of appeals before the Appellate Assistant Commissioner and were disposed of by him by the time the Commissioner resorted to proceedings under section 263, the Commissioner has no jurisdiction to exercise his power under section 263 because the orders of the Income-tax Officer ceased to be his orders and got merged in the order of the Appellate Assistant Commissioner. With regard to various other points raised in the orders passed by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel were heard. We are of the view that the view taken by the Income-tax Appellate Tribunal with regard to the theory of merger is not in consonance with law. This court has considered this aspect in the case of Ganga Devi v. CWT [1987] 166 ITR 325 (Raj), and after considering various judgments on the point, it was held (at page 344) : "We, therefore, hold that in the facts and circumstances of the case, the Commissioner of Wealth-tax had jurisdiction to act under section 25(2) of the Act in view of the fact that part of the assessment order was only the subject-matter of consideration before the Appellate Assistant Commissioner. In other words, only that part of the order of the wealth-tax Officer which was not made the subject-ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said orders under section 263 of the Income-tax Act. It is, however, observed that the matter with regard to primogeniture was decided by the Tribunal on the merits and, therefore, in the absence of a separate question in respect thereof, no decision can be given by this court. It was for the Revenue to have approached this court if the said question was not allowed to be referred by the Income-tax Appellate Tribunal and the Department having failed to do it, the order of the Income-tax Appellate Tribunal on that point alone has become final. The Income-tax Officer is bound by the decision given by the Tribunal on the point of rule of primogeniture and with regard to other points, he will be free to pass an order in accordance with law, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
