TMI Blog1989 (2) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner of Income-tax (Appeals) even in respect of matters not covered by the appeal before the Commissioner of income-tax (Appeals) and, consequently, the Commissioner income-tax has no jurisdiction to invoke the powers under section 263 of the income-tax Act, 1961? Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that the Commissioner has no jurisdiction under section 263 to review that portion of the Income-tax Officer's order covered by the directions given by the Inspecting Assistant Commissioner under section 144B(4) of the Act ? (3) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers of revision even with respect to the issues which are not the subject-matter of the appeal. Section 263(1) of the Income-tax Act, 1961, which is relevant for the purpose, reads as under: "263.(1) Revision of orders prejudicial to revenue.-The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in the case of civil courts, mere filing of an appeal does not interfere with the finality of the original order. The following observations may usefully be extracted (at p. 95) : "While it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath v. Munni Dei [1914] 41 IA 104; AIR 1914 PC 65, or for computing the period of limitation for an application for final decree in a mortgage suit, as in Jowad Hussain v. Gendan Singh [1926] 53 IA 197 ; AIR 1926 PC 93. But as pointed out by Sir Lawrence Jen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-matter of the appeal and the decision rendered by the appellate authority. It was held that where an appeal is preferred by the assessee to the Appellate Assistant Commissioner from an order of assessment made by the Income-tax Officer in respect of only some of the items covered by the Income-tax Officer's order and the remaining items, forming part of the Income-tax Officer's assessment order, were not agitated or the Appellate Assistant Commissioner did not consider them suo motu and no decision of the Appellate Assistant Commissioner is, therefore, made in respect of the remaining items, the Income-tax Officer's order merges with the appellate order of the Appellate Assistant Commissioner only to the extent it was considered and decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as had not been considered and decided in such appeal." This amendment, though not applicable to the assessment order concerned herein, manifests the legislative intent. It is really clarificatory in nature. We have, of course, held that even without such an explanatory clause, the position is the same. For the above reasons, question No. 1 is answered in the negative, that is, in favour of the Revenue and against the assessee. No costs. Referred Case No. 177 of 1985 In this case, the question referred to has to be answered in the negative, that is, in favour of the Revenue and against the assessee following the decision in Torson Products Ltd. v. CIT [1988] 173 ITR 611 (AP). The reference is answered accordingly. No costs. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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