TMI Blog1989 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Income-tax (Central-I) (respondent No. 1) on the basis whereof he could consider that the said assessment for the assessment year 1971-72 under the said Act was, in any way, erroneous and prejudicial to the interests of the Revenue within the meaning of section 16 of the said Act. It is urged that, on the basis of the allegations made in the said notice, no person properly instructed in law could reasonably consider the said assessment to be erroneous and prejudicial to the interests of the Revenue. A condition precedent necessary to confer jurisdiction upon respondent No. 1 to act and proceed and pass any order under section 16 of the said Act did not exist and the basic requirements were not satisfied and/or fulfilled. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of the Appellate Assistant Commissioner and the operative order is the order of the Appellate Assistant Commissioner. Hence, the Commissioner of Income-tax has no power to revise the order of the Income-tax Officer which had already merged with the order of the Appellate Assistant Commissioner before the issuance of the purported notice. Dr. Pal has also argued by drawing the attention of the court to a decision of the Division Bench of this court in General Beopar Co. (Pvt.) Ltd. v. CIT [1987] 167 ITR 86. The Bench decision mainly followed the judgment of the Supreme Court in the case of Amritlal Bhogilal and Co. Ltd. [1958] 34 ITR 130. The ratio of the said decision is that when an order of assessment was appealed against, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bud by seeking reliefs in the writ court. The acts done and/or caused to have been done by the respondents in issuing the impugned notice are not without jurisdiction and the reliefs sought by the petitioner are unwarranted and uncalled for. The attention of the court has also been drawn to a decision of the Division Bench of this court in CIT v. Upper Ganges Sugar Mills Ltd. [1985] 154 ITR 308 (sic). Having heard learned counsel appearing for the respective parties, the only question before this court to be decided is as to whether the issuance of the impugned notice under section 16 of the Surtax Act is without jurisdiction or not. The only argument advanced on behalf of the petitioner is that the steps taken by respondent No.1 to is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. (P.) Ltd. v. CIT [1987] 167 ITR 86, the Division Bench quoted the observation of Chagla C. J. in the case of CIT v. Tejaji Farasram Kharawala [1953] 23 ITR 412 (Bom) (at page 92 of 167 ITR) "....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 precluded from making an order under section 33B once an order has been passed by the Appellate Assistant Commissioner even though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive decision in law. If the appellate authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law, the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority, the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement." Thus, looking to the approach of the apex court of the country for appreciating the position of law correctly as to the question of merger, there is no doubt that, once an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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