9911796707
TMI Blog1982 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 80J granted by the ITO and directing him to determine the relief afresh in accordance with law after giving an opportunity to the assessee of being heard in the matter. It seems that the assessee filed an appeal before the Tribunal from this order and that it was dismissed in limine as barred by limitation. 2. The ITO passed an order on 11th April, 1977 giving effect to the order of the Commr. under s. 263. This shows that at the time of the hearing it was contended by the ld. Rep. of the assessee that the capital work-in-progress forms part of the capital employed. The contention was rejected by the ITO. With regard to the value of fixed assets, it was stated by the ITO that their written down value, as on 1st Jan., 1971, had been taken after giving effect to certain orders of the Tribunal with regard to other assessment years. He, therefore, recalculated the relief under s. 80J accordingly. 3. The assessee filed an appeal against the above said order of the ITO. The Commr. (A) held that the appeal is not maintainable on the ground that the CIT had in his order under s. 263, given a definite finding with regard to the admissibility of the claims made by the assessee, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, it was contended by the ld. departmental representative that the order of the ITO had merged in the revisional order passed by the Commr.; that it has become final as there was no effective appeal against the same by the assessee; that the cost of work-in-progress cannot be treated as part of the capital for computing the relief under s. 80J; that the ITO, who is a subordinate authority, could not have gone into the matter afresh and that on this issue, no appeal was maintainable against the order of the ITO in which the ITO had faithfully carried out the orders of the Commr. It was also contended by the ld. departmental representative that in the light of the order of the Commr., the ITO could not have even taken note of a subsequent decision of the Bombay High Court. With regard to the merits of the appeal, it was not disputed that under the ruling of the Bombay High Court in (1979) 119 ITR 164 (Bom), the cost of the work-in-progress may have to be treated as part of the capital employed. 6. The contention of the ld. counsel for the assessee that there was no effective appeal against the order of the Commr. and that the position is, as if the assessee had filed no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal authorities and which had become final will lose their finality the moment an order is passed by the ITO in pursuance to the order of the appellate or revisional authority. It has been held in Pulbpati Subbarao Co. vs. AAC (1959) 35 ITR 673 (AP), that if the AAC had given specific directions to the ITO, it was not open to the ITO to travel beyond the specific directions. In CIT vs. Indo-Aden Salt Works Co. (1959) 36 ITR 429 (Bom), it has been held that when the order of the Tribunal restricted the scope of the enquiry before the AAC to the question of merits affecting a particular claim, the AAC had no jurisdiction to issue a notice of enhancement and to withdraw certain reliefs already granted by the ITO. In Gopal Chandra Sen vs. ITO (1963) 50 ITR 87 (Cal), it has been held that when an appeal or revision is taken from an order, it is the order in appeal or in revision which would be the outstanding and operative order and that only the appellate or revisional order can be challenged in proceedings u/Art 226 of the Constitution and not the earlier order. To the same effect is the ruling in Bhagwandas Kevaldas vs. N.D. Mehrotra Anr. (1959) 36 ITR 538 (Bom). 8. The ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 those findings collaterally in an appeal filed against the fresh order passed by the ITO. 10. The question for consideration, therefore, is whether the Commr. had in his order under s. 263 recorded definite findings or whether he had resorted the matter fully to the ITO after making some observations. As already stated, the contention of the ld. counsel for the assessee was that the Commr. had merely set aside the order of the ITO and restored the matter to him for making a fresh assessment. According to the ld. counsel, the Commr. had not recorded any findings on the question whether the cost of work-in-progress could be included in the capital base. In this context, the ld. counsel for the assessee placed much reliance upon the concluding portion of the order of the Commr. Which is to the following effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reducing the written down value by the amount of extra shift allowance allowed in the past. He then stated in paragraph 7 of the order: "In the above circumstances, I find that the ITO had allowed excessive allowance under s. 80J of the Act on both the counts mentioned above. I, therefore, hold that the said order of the ITO dt. 30th Nov., 1974 under s. 143(3) for the asst. yr. 1972-73 is erroneous in so far it is prejudicial to the interests of the Revenue." In this state of affairs, we are unable to accept the contention of the ld. counsel for the assessee that the Commr. had only expressed certain opinions and that he had not recorded definite findings on these issues. We hold that the Commissioner had recorded clear findings on these two issues. As the assessee did not file an effective appeal against these findings, they became final and they cannot be attacked collaterally by filing an appeal from the fresh order passed by the ITO. We also reject the contention of the ld. counsel for the assessee that at the time of the passing of the fresh assessment order, it was open to the ITO to consider the matter afresh. In this view of the matter, the appeal filed by the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
