9911796707
TMI Blog1992 (6) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... specting Assistant Commissioner (Assessment) has resulted in the complete merger of the order appealed against with the appellate order, thereby ousting the jurisdiction of the Commissioner of Income-tax from exercising his power under section 263 of the Income-tax Act, even though the issues considered under section 263 were not the subject-matter of appeal before the Commissioner of Income-tax (Appeals)?" The relevant facts are as follows: The assessee is a company and the year relevant to this application is the assessment year 1980-81. The assessment order which is passed by the Inspecting Assistant Commissioner (Assessment) is dated July 29, 1982. The Commissioner of Income-tax (Appeals) passed an order in appeal from this order wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax cannot thereafter exercise his powers under section 263 as the assessment order has merged with the appellate order. It is pointed out by Mr. Jetley, learned counsel for the Revenue, that section 263 has since been amended in the following manner : The Explanation to section 263(1) as it stood prior to June 1, 1988, did not contain clause (c) which is the material clause for our purposes. Clause (c) was added to the Explanation to section 263(1) for the first time with effect from June 1, 1988. It provided that Where any order referred to in section 263(1) and passed by the Assessing Officer had been the subject-matter of any appeal, the powers of the Commissioner under section 263(1) shall extend to such matters as had not been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Amendment) Act, 1984, with effect from October 1, 1984. The Explanation had only two clauses (a) and (b) at that time. Clause (c) was inserted in the Explanation by the Finance Act, 1988, with effect from June 1, 1988. However, clause (c) of the Explanation did not have the words " filed on or before or after the 1st day of June, 1988 ", after the words " of any appeal ", nor the words " and shall be deemed always to have extended ", between the words " shall extend " and " to such manner These words were introduced by the Finance Act of 1989 with retrospective effect from June 1, 1988. The learned judge held that the fact that the insertion of these words in clause (c) was made retrospective from the date on which clause (c) to the Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at decision, the answer to the point at issue which is before us becomes self-evident. In the case of CIT v. Desai Brothers Ltd. [1991] 189 ITR 88, a Division Bench of this court (to which one of us, Mrs. Sujata V. Manohar J., was a party) held that, when a question has been decided in favour of the assessee or the Department by the High Court, the mere fact that a special leave petition from the judgment of the High Court is pending before the Supreme Court, will not, by itself, be a ground for allowing an application under section 256(2) of the Income-tax Act, 1961. Because, until the question is finally decided by the Supreme Court, the High Court would be ordinarily bound by its own earlier decision. It was pointed out to us that in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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