TMI Blog1998 (4) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawing the relief granted under sections 80J and 80HH. The Appellate Tribunal found that the relief granted under sections 80J and 80HH being the subject of the assessment order itself, they were capable of being subject to enhancement by the appellate authority and to that extent, they had merged with the appellate order even before the Commissioner could revise the assessment order. Under section 263, the Commissioner could only interfere with the order of the Income-tax Officer and since it had merged with the appellate order, it was not available for being reviewed by the Commissioner. Hence, the Appellate Tribunal cancelled the order under section 263 as being without jurisdiction. It is on these facts, the Tribunal, at the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the Revenue ; (ii) Before passing an order, it is incumbent upon the Commissioner to provide an opportunity to the assessee of being heard ; and (iii) Option is also available to the Commissioner to make an enquiry as it deems necessary. If those conditions are satisfied, it is open to the Commissioner to pass such order thereon as the circumstances of the case justify including an order enhancing or modifying the assessment or cancelling the assessment and directing a fresh assessment. Explanation (c) appended to the said sub-section is relevant for the present purpose and it reads as under : "Explanation.---For the removal of doubts, it is hereby d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed always to have extended to them because those items had not been considered and decided in the appeal filed by the assessee'. In that case the assessment was completed on March 31, 1978, and the Income-tax Officer while computing loss and income of the assessee had accepted the claim of the assessee in respect of those three items. Obviously, in the appeals filed by the assessee those items were not the subject-matter of the appeals as the decision in respect thereof was in its favour. In respect of those three items, the Commissioner had exercised his power under section 263 of the Income-tax Act and, therefore, the question which had arisen for consideration was 'whether, on the facts and in the circumstances of the case, the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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