Patna High Court
Commissioner Of Income-Tax vs Maqbool Alam And Company on 22 January, 1997
Equivalent citations: [1998]231ITR77(PATNA)
Author: A.K. Ganguly
Bench: Asok Kumar Ganguly
ORDER--First appellate authority remanding the case to assessing officer for decision. Ratio : The Commissioner (Appeals) not having decided the question regarding the assessee's claim for deduction under section 35B but, having remanded it to the assessing officer for a decision, the decision on the said question by another assessing officer was a fresh decision and could not be said to have been merged with that of the Commissioner (Appeals) and against such fresh decision of the assessing officer, the Commissioner could exercise his jurisdiction under section 263. Held: The Commissioner (Appeals) did not decide the controversy himself, but sent it on remand to the assessing officer for a de novo hearing and passing of a fresh order. Then a different assessing officer passed a fresh order. Therefore, exercise of revisional jurisdiction by the Commissioner against that fresh order under section 263 is certainly not beyond the jurisdiction of the Commissioner. Apart from that, this Court finds that to section 263 Explanation (c) has been added in order to put the matter beyond controversy. It is obviously true that such Explanation has been added by the amendment made by the Finance Act, 1989, but the amendment is retrospective in nature as is clear from the reading of the said Explanation. It also includes an appeal filed on or before or after 1-6-1988 as is clear from the aforesaid Explanation. Even without the aforesaid amendment the law on this point has correctly been laid down in the Full Bench decision of Madhya Pradesh High Court in the case of CIT v. R. S. Banwarilal (1982) 11 Taxman 104 (1983) 140 ITR 3. But the said principle will not apply where a decision of an inferior authority does not come in for consideration by the appellate authority and there is no decision of the appellate authority either by way of affirmance or by way of reversal or modification on the point decided by the inferior authority. It has been further elucidated by saying that the real test is whether any such point was actually considered and decided by the authority and not that the same could have been agitated before the authority and decided by him. It has been said that when there is no decision by the appellate authority, the order of the assessing officer remains untouched and it is open to the Commissioner, in exercise of power under section 33B, to revise it. In this case, as pointed out before, the Commissioner (Appeals) has not decided the question whether the assessee is entitled to the deduction under section 35B, but remanded the said question to the assessing officer for a decision. Therefore, the decision on the said question by another assessing officer is a fresh decision and the same cannot be said to have been merged with the order of the Commissioner (Appeals). Against such fresh decision of the assessing officer, the Commissioner can exercise his jurisdiction under section 263 for the purpose of revising the order. Case Law Analysis: CIT v. R. S. Banwarilal (1983) 140 ITR 3 (MP) (FB) applied J. K. Synthetics Ltd. v. Addl. CIT (1976) 105 ITR 344 (All) is against the decision of Supreme Court in CIT v. Amritlal Bhogilal & Co. (1958) 34 ITR 130 (SC). Application: Also to current assessment years A. Y.: 1977-78 Income Tax Act 1961 s.263 JUDGMENT A.K. Ganguly, J.
1. At the instance of the Revenue, two questions have been referred to this court for their adjudication. Those questions are set out below :
"1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the order passed by the Income-tax Officer merged into the order passed by the Commissioner of Income-tax (Appeals) ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in its finding that the order passed by the Commissioner of Income-tax under Section 263 of the Income-tax Act, 1961, was without jurisdiction ?"
2. Against an order of assessment passed by Sri N. K. Shukla, Income-tax Officer Ward-B, Muzaffarpur, in respect of the assessee-firm for the assessment year 1977-78, the firm preferred an appeal before the Commissioner of Income-tax (Appeals). In the said appeal various points were taken, namely, disallowance of Rs. 1,000 out of packing charges, disallowance of Rs. 2,143 being the amount paid to Jai Chandars, disallowance of Rs. 1,000 on account of transport charges and disallowance of depreciation to the tune of one-third of the claim for personal use of the car by the partners and also disallowance of deduction under Section 35B of the Income-tax Act, 1961 (hereinafter referred to as the "said Act").
3. On the question of disallowance of deduction under Section 35B of the said Act, the Commissioner of Income-tax (Appeals) came to the finding that since the order of the Income-tax Officer on the subject is silent, the matter was remanded to the file of the Income-tax Officer by the Commissioner of Income-tax (Appeals) for re-examination of the claim and for scrutinising the details of export markets development expenses. The following observations have been made in the order of the Commissioner of Income-tax (Appeals) :
"However, since the order of the Income-tax Officer on the subject is silent although the appellant made a claim before him, I feel that the matter should be set aside and restored to the file of the Income-tax Officer for re-examination of the claim and for scrutinising the details of export markets development expenses. Accordingly, I set aside this point to him for passing order de novo in the light of my above-mentioned observation and after giving the appellant an opportunity of being heard."
4. Thereafter, another Income-tax Officer, Sri R.O.P. Sinha, Ward-A, Muzaffarpur, passed a fresh order allowing deduction under Section 35B of the said Act to the extent of Rs. 1,06,914. The Commissioner of Income-tax in exercise of his power of revision under Section 263 of the said Act, set aside the said order of assessment. That order of the Commissioner is, however, not on record. Admittedly, the assessee filed an appeal before the Appellate Tribunal against the said order of the Commissioner and the Tribunal held that the order of the Income-tax Officer merged with the order of the Commissioner of Income-tax (Appeals) and the Commissioner of Income-tax had no jurisdiction to pass orders under Section 263 of the said Act in respect of the assessment order.
5. This court finds that the Tribunal is obviously wrong. The Commissioner of Income-tax (Appeals) did not decide the controversy itself but sent it on remand to the Income-tax Officer for a de novo hearing and passing of a fresh order. Then a different Income-tax Officer passed a fresh order. Therefore, exercise of revisional jurisdiction by the Commissioner against that fresh order under Section 263 of the said Act is certainly not beyond the jurisdiction of the Commissioner of Income-tax.
6. Apart from that, this court finds that to Section 263 of the Act Explanation (c) has been added in order to put the matter beyond controversy. Explanation (c) which has been added in Sub-section (1) of Section 263 of the said Act is in the following terms :
"where any order referred to in this sub-section and passed by the Assessing Officer had been the subject-matter of any appeal, filed on or before or after the June 1, 1988, the powers of the Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal."
7. It is obviously true that such Explanation has been added by the amendment made by the Finance Act, 1989, but the amendment is retrospective in nature as is clear from the reading of the said Explanation. It also includes an appeal filed on or before or after June 1, 1988, as is clear from the aforesaid Explanation.
8. Even without the aforesaid amendment the law on this point has correctly been laid down in the Full Bench decision of the Madhya Pradesh High Court in the case of CIT v. R.S. Banwarilal, [1983] 140 ITR 3. Speaking for the Full Bench, J.S. Verma J. (as his Lordship then was), discussing various decisions on this question, has held that the principle of merger does undoubtedly apply to income-tax cases, but the same will apply only where a decision reached by an inferior authority has been reversed, modified or even confirmed by the appellate authority. But the said principle will not apply where a decision of an inferior authority does not come in for consideration by the appellate authority and there is no decision of the appellate authority either by way of affirmance or by way of reversal or modification on the point decided by the inferior authority. It has been further elucidated by saying that the real test is whether any such point was actually considered and decided by the authority and not that the same could have been agitated before the authority and decided by him. It has been said that when there is no decision by the appellate authority, the order of the Income-tax Officer remains untouched and it is open to the Commissioner, in exercise of power under Section 33B, to revise it. (See the observation at page 13 in R.S. Banwarilal's case [1983] 140 ITR 3 (MP)). The said Full Bench decision in R.S. Banwarilal's case [1983] 140 ITR 3 (MP) is based on various decisions of the Supreme Court and an elaborate consideration of all the relevant cases on this point. The said decision also expressly negatives the judgment of the Allahabad High Court in the case of J.K. Synthetics Ltd. v. Addl. CIT, [1976] 105 ITR 344. This court is also of the view that the decision of the Allahabad High Court in J.K. Synthetics case [1976] 105 ITR 344 has been wrongly decided and is contrary to the decision of the Supreme Court in CIT v. Amritlal Bhogilal and Co., [1958] 34 ITR 130.
9. In this case, as pointed out before, the Commissioner of Income-tax (Appeals) has not decided the question whether the assessee is entitled to the deduction under Section 35B of the said Act, but remanded the said question before the Income-tax Officer for a decision. Therefore, the decision on the said question by another Income-tax Officer is a fresh decision and the same cannot be said to have merged with the order of the Commissioner of Income-tax (Appeals). Against such fresh decision of the Income-tax Officer, the Commissioner can exercise its jurisdiction under Section 263 of the said Act for the purpose of revising the order.
10. Therefore, for the reasons stated above, both the questions are answered in the negative and in favour of the Revenue. Parties to bear their own costs.
11. Let a copy of this judgment under the seat of the court and under the signature of the Registrar be sent to the Income-tax Appellate Tribunal, Patna Bench, Patna.
N. Pandey, J.
12. I agree.