TMI Blog1991 (1) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1975-76, the assessment in the case of the petitioner herein was made by the Income-tax Officer on September 21, 1978, on a total income of Rs. 13,08,902. From the records maintained in the office of the Inspecting Assistant Commissioner (Assessment), Agra, the Commissioner found that the petitioner was a partner in the partnership firm, Shiv Narain Parmendra Narain, Ranghat, Aligarh, with a share of 50%. The petitioner's contention, however, was that 1/3rd of the income received towards the said share alone must be assessed in his hands and the remaining 2/3rds of the said share income should be distributed equally between his wife and his minor son by virtue of an overriding charge created by a memo of partial partition dated Novembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this court that the income accruing to the wife and the minor son of the petitioner cannot be clubbed with or included in the income of the petitioner (vide I. T. R. No. 764 of 1978). This decision was rendered by this court following its earlier decision in CIT v. Lakshmi Kant Gupta [1978] UPTC 314). The Income-tax Officer has merely followed the decision of this court. If so, it cannot be held that the order of assessment made by him is erroneous within the meaning of section 263. The impugned show-cause notice is, therefore, without jurisdiction and amounts to harassment of the petitioner. Though no counter-affidavit has been filed by the respondent, the writ petition has been opposed by Sri Markandey Katju, learned additional standi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner's wife and minor son. True, it is submitted that the said decision is the subject-matter of an appeal pending before the Supreme Court, but can it be said on that account that the assessment order made by the Income-tax Officer following the decision of this court is erroneous within the meaning of section 263. It is well-settled that for invoking the power under section 263, two grounds must exist, namely, (i) the order proposed to be revised must be erroneous and (ii) it must be prejudicial to the Revenue. The second ground may be said to have been satisfied in this case, but not the first one. Just because an appeal is pending, the decision of this court cannot be treated as not final, nor can it be ignored. It is bind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as information within the meaning of section 147 but even that may be barred in many cases. Can the Commissioner say in such cases that he would invoke his power of revision and keep it pending awaiting the decision of a higher court or authority ? To put it in the language of section 263, can he, in such a case, act on the footing that the order of the assessing authority is erroneous ? After giving our earnest consideration to the matter, we are of the view that it is difficult to sustain the exercise of reviewing power in such a situation for the simple reason that the order of the assessing authority cannot be said to be erroneous if he merely follows a decision of a higher authority or court on the same point in the case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of an appellate authority, it cannot be said that his decision is erroneous merely because the decision of the appellate authority is the subject-matter of a further appeal. For the above reasons, the writ petition is allowed and the impugned show-cause notice dated August 23, 1980, is quashed. No costs. C. M. W. P. No. 388 of 1980 : Though the facts in this case are said to be similar to those in C. M. W. P. No. 387 of 1980, Mr. Upadhyaya, learned counsel for the petitioner, fairly stated that the decision, which the Income-tax Officer followed in making the assessment in this case is not in the case of this very assessee, but a decision rendered in similar circumstances. Since the decision followed is not in the case of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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