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TMI Blog1984 (4) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... onditions. The first and third conditions were that depreciation as well as relief under section 80J of the Act will be allowed pro rata. The second condition was that the assessment year 1977-78 will be considered as one assessment year for the purpose of carry forward of unabsorbed business loss, unabsorbed development rebate and unabsorbed relief under section 80J. The assessee thereafter made a petition under section 264 of the Act to the Commissioner and raised objections against the conditions imposed by the ITO. The Commissioner deleted condition No. 1 regarding the allowance of pro rata depreciation. The assessee did not take any objection about condition No. 2 and condition No. 3 imposed by the ITO was confirmed by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80J would be allowed at 25 per cent of 6 per cent of the capital employed. Since the Commissioner of Income-tax, West Bengal V, is a superior authority with reference to the authority of an ITO, subsequent to the passing of the order by the Commissioner of Income-tax, West Bengal V, on 30-10-1979, the order of the ITO regarding computation of relief under section 80J has merged with the order of the Commissioner of Income-tax and the order no longer remains the order of the ITO. In terms of section 246 of the Income-tax Act, an appeal is provided to an assessee who is aggrieved by any order specified under that section passed by an ITO. In the present case since the order of the ITO has merged with the order of the Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 ITR 510 (Mad.) and CIT v. Sarabhai Sons Ltd. [1983] 143 ITR 473 (Guj.), urged that the relief should be allowed at 6 per cent for the full year. In this connection he stated that the special leave petition in Simpson & Co.'s case has been rejected by the Supreme Court and this fact has been mentioned in Mysore petro-chemical Ltd.'s case and Metal Powder Co. Ltd.'s case. 4. Shri Chakraborty, the departmental representative, on the other hand, relying on CIT v. Amritlal Bhogilal & Co. [1958] 34 ITR 130 (SC) and CIT v. Gaekwade Vasappa & Sons [1983] 143 ITR 1 (AP) urged that the order of the ITO merged with the order of the Commissioner (Appeals) and, therefore, the ground has rightly been dismissed by the Commissioner (Appeals). On merit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-allowance of section 80J relief for full year was confirmed by the Commissioner. This point has been agitated by the assessee while an appeal has been filed against the assessment framed under sections 143(3)/144B and 246(c). 6. It would be relevant to discuss the reasoning on which the argument of the assessee has been dismissed by the Commissioner (Appeals). The Commissioner (Appeals) has dismissed the ground of the assessee on the ground of merger. The reasoning adopted by the Commissioner (Appeals) may not be correct. The Commissioner has passed his order on 30-10-1979, whereas the assessment was made by the ITO on 29-2-1980. Therefore, when the Commissioner passed his order under section 264, there was no order passed by his subo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the assessee was right in taking a ground for adjudication in appeal filed by it under section 246(c). The assessment which was framed under section 143(3)/144B also is related with the previous year. Previous year is the ambit within which the income of the assessee is determined for the purpose of levy of tax. The determination of previous year was made as required under section 3(4) and one of the conditions was that the assessee will get relief under section 80J on pro rata basis. This point was concluded by the Commissioner under section 264 and, therefore, the assessee was not right in agitating over this issue in appeal. Under the above circumstances, the ground of the assessee is liable to be dismissed but not on the ground on w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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