TMI Blog1953 (3) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... Imperial Chemical Industries (India) Ltd. On the 24th of October, 1947, this, family agreed to transfer this business to a private limited company by the name of Tejaji Farasram Kharawala, Ltd., and the shareholders of this company were the members of the joint family. Under the agreement of sale the goodwill of the business was fixed at ₹ 50,000. The family's income for Samvat Year 2003 was computed at ₹ 3,51,506. This amount included a sum of ₹ 25,000 which was included as representing the goodwill of the business which had been transferred to the private limited company. As the goodwill was transferred for ₹ 50,000, the Income-tax Officer computed the balance of ₹ 25,000 as capital gains under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to direct the Income-tax Officer to make a fresh assessment, and the only limitation that was laid down on the exercise of his jurisdiction was that if he wanted to enhance the assessment, he must give the assessee a reasonable opportunity of showing cause against the enhancement. From the decision of the Appellate Assistant Commissioner the right was given both to the Commissioner and to the assessee to appeal to the Appellate Tribunal. Section 33-A gave the Commissioner the power of revision, but that power of revision could only be exercised by the Commissioner in favour of the assessee because that section in terms provided that no order passed by the Commissioner should be prejudicial to the assessee. Section 33-B was enacted by Act X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner under Section 33-A was against any order passed by any authority subordinate to him, the power of revision conferred upon the Commissioner under Section 33-B was restricted to any order passed by the Income-tax Officer. Therefore in terms Section 33-B conferred upon the Commissioner the power to revise only the orders of the Income-tax Officer. The Legislature advisedly did not confer upon the Commissioner the power to revise either the orders of the Appellate Assistant Commissioner or the Appellate Tribunal. Now, in this particular case, the Income-tax Officer passed an order assessing the capital gains of the assessee at ₹ 25,000, and the assessee appealed from that order, and the Appellate Assistant Commissioner confirmed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen an appeal is provided from a decision of a Tribunal and the appeal Court after hearing the appeal passes an order, the order of the original Court ceases to exist and is merged in the order of the appeal Court, and although the appeal Court may merely confirm the order of the trial Court, the order that stands and is operative is not the order of the trial Court but the order of the appeal Court. In this case although the Appellate Assistant Commissioner may not have disagreed with the Income-tax Officer and may have confirmed the order, the ultimate order of assessment which. was in operation was the order of the Appellate Assistant Commissioner confirming the decision of the Income-tax Officer. It is unnecessary to consider the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealt with in that appeal by the Appellate Assistant Commissioner and a case where that matter is dealt with by him. The Tribunal seems to have overlooked, with respect, the very wide jurisdiction conferred upon the Appellate Assistant Commissioner to which reference has already been made. It is not disputed by Sir Nusserwanji that once an appeal is preferred by the assessee it is open to the Commissioner to raise before the Appellate Assistant Commissioner any matter dealing with the assessment of the assessee. It is not as if the power of the Appellate Assistant Commissioner is confined to only those questions which have been raised by the assessee. Once this is conceded, it is difficult to understand why the Commissioner would not be prec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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