9911796707
TMI Blog1979 (10) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... February 14, 1975, under s. 143(3) of the I.T. Act (hereinafter referred to as " the Act "). The respondent No. 3 allowed a rebate of Rs. 3,98,290 as admissible deduction, being business expenditure. The rebate claimed by the company and allowed was at Rs. 10 per quintal paid to M/s. Madanlal Nandlal on the sales of sugar. The petitioner filed an appeal against the order of assessment to the AAC, Special Range, Indore, under s. 246(c) of the Act which was partly allowed on May 22, 1975. It is not in dispute that the claim for rebate made by the petitioner and allowed by the ITO was not the subject-matter of the appeal and the same was not considered by the AAC in appeal. On December 20, 1976, the Commissioner of Income-tax issued a notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TO, respondent No. 3, pursuant to the order passed by the Commissioner under s. 263 of the Act. The learned counsel for the petitioner contended that the Commissioner had no jurisdiction to proceed under s. 263 of the Act and to revise the order of assessment passed by the ITO because the said order of assessment was merged in the order passed by the AAC in the appeal preferred by the petitioner. He, therefore, submitted that the notice issued by the Commissioner under s. 263 of the Act and the final order passed by him and the order of Income-tax Appellate Tribunal in appeal and all other subsequent proceedings are void and deserve to be quashed by this court. The learned counsel for the petitioner also contended that the Commissioner di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id by the petitioner to M/s. Madanlal Nandlal as business expenditure was not involved, and was not examined by the AAC, in the appeal preferred by the assessee. In the circumstances, the question of merger of the order of assessment passed by the ITO in the order of AAC passed in appeal does not arise. In State of Madras v. Madurai Mills Co. Ltd. [1967] 19 STC 144; AIR 1967 SC 681, the assessee filed a revision against the assessment order passed by the Dy. CTO to the Dy CCT. The revision was dismissed. Thereafter, the Board of Revenue issued notice to the assessee stating that it proposed to revise the assessment order passed by the Dy. CTO, as it excluded certain taxable amount. The assessee raised an objection on the ground that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction. For example, in Amritlal Bhogilal Co.'s case [1958] 34 ITR 130; AIR 1958 SC 868, it was observed by this court that the order of registration made by the Income-tax Officer did not merge in the appellate order of the Appellate Commissioner, because the order of registration was not the subject-matter of appeal before the appellate authority. It should be noticed that the order of assessment made by the Income-tax Officer in that case was a composite order, viz., an order granting registration to the firm and making an assessment on the basis of the registration. The appeal was taken by the assessee to the Appellate Commissioner against the composite order of the Income-tax Officer. It was held by the High Court that the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates and/or direction of the IAC (Audit), as alleged by the petitioner. No material has been placed by the petitioner on record to suggest that the Commissioner has not acted on his own initiative and has acted on the dictates or direction of any other officer. It is difficult to appreciate how the Commissioner would act on the dictates of an officer who is subordinate in rank to him. In the circumstances, the second contention raised by the learned counsel for the petitioner has also no substance and the decision of the Supreme Court in Sirpur Paper Mill Ltd. v. CWT [1970] 77 ITR 6, relied upon by him, is not helpful to the petitioner. The facts of that case were entirely different. There is another hurdle in the way of the petitioner. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of availability of alternative remedy because the petitioner would not now be able to pursue the said remedy and would suffer great hardship. There is no merit in the said submission. It may be that in an appropriate case if it is shown that a party not at fault may suffer hardship on account of the dismissal of a petition on the ground of availability of alternative remedy by lapse of time, the court may in its discretion give relief to the petitioner in spite of the fact that an alternative remedy was available to him and may not dismiss the petition at the final hearing only on that ground. But such is not the case on hand. As stated above, on the materials placed on record when this petition was filed, an application under s. 256(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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