TaxTMI 
TaxTMI 
1986 (2) TMI 114
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.... passed under section 263. Before the order passed by the Commissioner under section 263 dated22-9-1980could be said to have become final. The IAC (Assessment) passed an order dated9-10-1980cancelling the initiation of penalty proceedings under section 271(1)(c). The order of the IAC (Assessment), reads as follows : " Order under sections 271(1)(c) and 273(a) of the Income-tax Act, 1961 Penalty proceedings initiated under sections 271(1)(c) and 273(a) stand cancelled as the assessment itself has been cancelled by the Commissioner. Sd/ (H. Tulsyan) Inspecting Assistant Commissioner of Income-tax (Central) Range : V NewDelhi". Thereafter on27-2-1982the Tribunal cancelled the order of the Commissioner dated22-9-1980passed under section ....
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....ade five points against the validity of the order passed under section 263. Firstly it is contended that what the IAC (Assessment) did on9-10-1980did not tantamount to an order and, therefore, there was no question of the cancellation thereof by the Commissioner acting under section 263. For so contending reliance is placed on the decision of the Hon'ble Allahabad High Court in the case of Ramlal Kishore Lal v. CIT [1972] 84 ITR 138. It is next contended without prejudice to the first contention that on the basis of record as it existed on9-10-1980, there was no error in the so-called order passed by the IAC (Assessment) and, therefore, the Commissioner had no jurisdiction to act under section 263. For this proposition Mr. Relan has placed ....
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.... background of the case and perused the impugned order as well as the papers annexed in the paper book submitted on the side of the assessee. After so doing we will adjudicate upon the various points made by the learned authorised counsel of the assessee. After going through the decision of the Hon'ble Allahabad High Court in the case of Ramlal Kishore Lal, we, find that the facts in that case were substantially different from the facts in the present case. In the Allahabad High Court case only a note had been made by the ITO which was entered in the order sheet and which was to the effect ' penalty dropped '. In the present case a regular order was passed by the IAC (Assessment) which is reproduced in paragraph 1 of this order. According t....
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....n of law in respect of the theory of merger is that only that part of the order merges or gets fused in the order of the higher appellate authority which has been subject-matter of appeal before him. Apart from our this understanding of the theory of merger, we find that in the present case the question of any merger did not arise at all. The penalty proceedings had no doubt been directed to be initiated when the assessment was framed on 23-9-1978, but since the question of penalty had not been a subject matter of any appeal before any higher authority, there was no question of saying that the order of the assessing officer directing initiation of penalty proceedings under section 271(1)(c) had at any stage got merged with any order of a hi....