TMI Blog1998 (8) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... g questions of law formulated by it for the opinion of this court, viz. : "(1) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is correct in law in cancelling the order passed under section 263 of the Income-tax Act on the ground that the order of the Assessing Officer merged in the order of the Commissioner of Income-tax (Appeals)? (2) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is correct in law in holding that the order of the Assessing Officer merged with the order of the Commissioner of Income-tax (Appeals) in toto when only certain points have been agitated before and decided upon by the Commissioner of Income-tax (Appeals)? (3) Wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessing authority under section 143(3) of the Act, the assessee filed an appeal before the Commissioner of Income-tax (Appeals) who partly allowed the appeal reducing the income of the assessee to Rs. 4,74,483 from Rs. 16,46,990. As against the order of the Commissioner of Income-tax (Appeals), the Revenue carried the matter before the Income-tax Appellate Tribunal, Hyderabad. However, the Tribunal dismissed the appeal filed by the Revenue while confirming the orders passed by the Commissioner of Income-tax (Appeals). While the appeal was pending before the Tribunal, the Commissioner of Income-tax, Guntur, has initiated revision proceedings under section 263 of the Act on the ground that the Assessing Officer has failed to conduct pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing authority which have not fallen for consideration before the Commissioner of Income-tax (Appeals), are open to the Commissioner of Income-tax, for review under section 263 of the Act. It is in this background, learned standing counsel for the Revenue states that the view of the Tribunal in holding that the order passed by the assessing authority has merged with the order passed by the Commissioner of Income-tax (Appeals) in view of the provisions of clause (c) of the Explanation to sub-section (1) of section 263 of the Act, is incorrect. Placing strong reliance on a decision of the Supreme Court in CIT v. Shri Arbuda Mills Ltd. [1998] 231 ITR 50, learned standing counsel for the Revenue submitted that the order passed by the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facets of the order of the assessing authority which are left untouched by the Commissioner of Income-tax (Appeals) are available for the Commissioner of Income-tax to revise under section 263 of the Act, as this court would be exercising a limited jurisdiction under section 256(2) of the Act and sought rejection of this ITC. We have heard both learned counsel at length and we have given our anxious consideration to the submissions made before us. The decision in CIT v. Shri Arbuda Mills Ltd. [1998] 231 ITR 50 (SC) cited by learned standing counsel for the Revenue, no doubt makes it clear that on certain facets which have not fallen for consideration before the Commissioner of Income-tax (Appeals) with regard to the order of the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd refer the questions of law formulated in that regard for the opinion of this court. In other words, the High Court, if not satisfied with the correctness of the decision of the Tribunal, could give a direction to the Tribunal for stating the case and referring the questions of law for the opinion of this court. In this case, the Tribunal, on a consideration of the submissions, has categorically found that the entire order of the assessing authority has fallen for consideration before the Commissioner of Income-tax (Appeals) and, as such, the entire order of the assessing authority dated September 19, 1989, has merged with the order of the Commissioner of Income-tax (Appeals), dated February 28, 1992. That being the finding of fact, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
