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TMI Blog1987 (11) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITO as the order of the ITO was merged with the order of CIT(A). (2). The learned CIT failed to appreciate that, the learned CIT(A) vide his order dt. 8th Oct. 1987, decided the appeal of the appellant therefore the CIT was not justified in revising the order passed by the ITO." 3. The learned Departmental Representative Shri A.A. Makjija objected to the raising of the additional grounds. According to him the assessee did not raise these before the Commissioner and, therefore, the Tribunal cannot allow these ground to be taken by as it will amount to substitution of the grounds which did not form part of the order of the Commissioner as held by the Punjab and Haryana High Court in the case of CIT vs. Jagadhari Electirc Supply Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional grounds as raised. Reliance was placed on the decision of the Supreme Court in the case of Hukum Chand Mills Ltd. vs. CIT (1967) 63 ITR 232 (SC), for the proposition that the Tribunal has the jurisdiction to allow any new question to be raised for the first time two in appeal before it and should allow such a question to be raised if it is a question which can be decided on the facts already on record. The learned counsel also cited the following decisions: (i) CIT vs. India Auto Stores (1980) 14 CTR (Mad) 313 : (1981) 129 ITR 554 (Mad); (ii) J.S. Patkar vs. B.B. Palekar Ors. (1974) 94 ITR 616 (Bom); (iii) CIT vs. Mahalaxmi Textile Mills Ltd (1967) 66 ITR 710 (SC). Having regard to the ratio of the above decisions and ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal. 5. If the case of the assessee is considered in the light of the above decisions, the additional grounds raised can be decided on the evidences already placed on record. The assessment for the asst. yr. 1979-80 was completed by the ITO on 24th Aug., 1982 determining the loss of Rs. 31,99,923. Against this order of assessment, the assessee filed an appeal before the CIT(A) and the CIT(A) decided the appeal on 8th Oct., 1982. In the meanwhile, the Commissioner exercising his power under s. 263 of the IT Act issued notice for revision and passed the order dt. 18th Aug., 1984 which is impugned before us. The assessee in this case raised an additional ground challenging the jurisdiction of the Commissioner to revise the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a new precedent, generally on the scope of the appellate jurisdiction in taking enactment, would be read into the decision, by implication, an intention on the part of the Supreme Court to overrule the three decisions which have stood without a word of contradiction in the later decisions of that Court. As we pointed out that CIT vs. McMillan Co. (1958) 33 ITR 182 (SC), Hukumchand Mills Ltd.'s case (1967) 63 ITR 232 (SC) and Mahalaxmi Textile Mills Ltd's case (1967) 66 ITR 710 (SC) have not been noticed in the latest case cited for the Department, we do not think that the Supreme Court could have intended to throw overboard, by implication, all these well-considered judgments." Respectfully following the above decisions, we hold that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C, and the Commissioner completely goes out of the picture once the AAC passes orders in appeal from the decision of the ITO. In the light of the above, the order of the ITO under appeal merged completely in the order of the AAC. This being the position, the deemed order of waiver of interest by the ITO under s. 139 and s. 217 was part and parcel of the process of assessment and, therefore, merged with the order of the AAC. Hence, the Addl. Commissioner should not have exercised jurisdiction under s. 263." Respectfully following the above decision, we hold that the Commissioner cannot exercise his power under s. 263 as the order of the ITO has already merged with that of the CIT(A). 9. The appeal is allowed. 10. Since we have allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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