9911796707
TMI Blog1995 (12) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner in exercise of his powers under section 263 of the Income-tax Act, 1961? 2. The controversy pertains to the assessment year 1972-73, the relevant previous year being the year ended on 31-12-1971. The original assessment of the assessee was completed by the ITO on 30-11-1974. In the said assessment, the ITO while computing the capital employed for the purposes of working out relief under section 80J of the Act, took into consideration ₹ 2,70,023, being the value of capital work-in-progress. He also did not reduce the written down value of the assets entitled to depreciation by the amount of extra shift allowance allowed in the past. The Commissioner called for the records of the said assessment and on examination thereof, was satisfied that the order of assessment passed by the ITO was erroneous and prejudicial to the interests of the revenue. He, therefore, initiated proceedings under section 263 of the Act and after giving the assessee an opportunity of being heard, by his revisional order dated 25-11-1976 withdrew the relief granted to the assessee by the ITO under section 80J and directed the ITO to redetermine the relief afresh in accordance with law afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al was maintainable from such order of the ITO giving effect to the revisional order of the Commissioner. The assessee went in further appeal to the Tribunal against the above order of the Commissioner (Appeals). The Tribunal heard the assessee and its counsel, and on careful consideration of the same, summed up the legal position in regard to the maintainability of appeal against such orders in the following words: While an appeal will be maintainable from the fresh order passed by the Income-tax Officer, only matters which had not become final by the earlier orders of the appellate or revisional authorities can be agitated in the appeal. If in the earlier orders, the appellate or revisional authorities had recorded definite findings and if they had become final on account of the assessee not pursuing the statutory remedies prescribed against such orders, the assessee cannot attack these findings collaterally in an appeal filed against the fresh order passed by the Income-tax Officer. 4. In the light of the above observation, the Tribunal considered the question whether in the instant case, the Commissioner had, in his order under section 263, recorded a definite finding o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the revenue only for the purpose of assuming jurisdiction under section 263 and has not recorded any finding in regard to the question of includibility of the value of work-in-progress for computation of 'capital employed' and the controversy regarding deductibility of extra shift allowance from the written down value of an asset for computing depreciation in the succeeding year. The counsel submits that these questions were left open to the ITO for decision. Reliance was placed in support of the above contention on the operative part of the revisional order of the Commissioner which is in the following terms: In the circumstances, I hereby withdraw the relief under section 80J of the Act, granted by the ITO of a sum of ₹ 20,51,458 and direct the ITO to determine the relief afresh in accordance with the law after giving an opportunity to the assessee of being heard in this regard. In support of his above contention, the learned counsel also relied on the decision of the Punjab Haryana High Court in CIT v . R.K. Metal Works [1978] 112ITR 445, and decision of this Court in CIT v. Gabriel India Ltd [1993] 203 ITR 108. 6. We have carefully considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the capital employed under rule 19A of the Income-tax Rules. Since the assets had actually been subjected to extra shift as per the particulars furnished by the assessee itself, the ITO in the earlier assessments was justified in allowing extra shift allowance. The ITO, therefore, erred in the course of 72-73 assessment in not reducing written down value accordingly for the purpose of relief under section 80J. [Emphasis supplied] 7. It is abundantly clear from the above extracts that the Commissioner did decide both the issues raised before him and held in no less clear terms that the ITO had allowed excessive amount under section 80J on both the counts mentioned above. It was only after arriving at such a finding that the Commissioner withdrew the relief under section 80J granted by the ITO and directed him to determine the. relief afresh in accordance with law after giving an opportunity to the assessee of being heard in this regard. 8. On a reading of the revisional order of the Commissioner, we have no doubt in our mind that the direction of the Commissioner to the ITO to determine the relief under section 80J after giving an opportunity of being heard to the assessee wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al order, wherein a definite finding is recorded on both the points at issue, having become final on account of the failure of the assessee to pursue the statutory remedies provided in the Act against that order, the assessee cannot be allowed to challenge such concluded findings collaterally in an appeal filed against the fresh order passed by the ITO with a view to giving effect to the same. 11. In our opinion, though appeal is maintainable from the order passed by the ITO to give effect to a revisional order or an appellate order, only such issues can be agitated in such appeal which have not attained finality by virtue of earlier orders of the revisional or appellate authorities. It is not open in such an appeal to agitate any point which has already been decided by the revisional or the appellate authorities in their order. 12. In view of the above, we do not find any infirmity in the finding of the Tribunal in the instant case. Accordingly, question No. 1 is answered in the affirmative and in favour of the revenue. On the very same reasoning, question No. 2 is also answered in favour of the revenue. In the facts and circumstances of the case, there shall be no order as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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