2012 (10) TMI 874

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....evenue. The contention of the Revenue is that when the review petition came before the ld. Commissioner (Appeals), the appeal filed by the respondent against the same impugned order-in-original was already decided by him. The contention is that the ld. Commissioner (Appeals) has rejected the review application filed by the Revenue on the ground that the original order against which the Review Application is filed has already got merged with the earlier order-in-appeal and on the ground that there was no signature of the appellant at the bottom of the review application. The contention is that the doctrine of merger would not be applicable to this case. The ld. A.R. for the Department placed reliance on the decision of the Hon ble Supreme Co....

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....Drinks Ltd. (cited supra) held as under: 14. Applying the above test to the case at hand the doctrine would have no application for the plain and simple reason that the subject matter of the appeal filed by the assessee against the adjudicating authority s order in original was limited to disallowance of two out of eight deductions claimed by the assessee. The Tribunal was in that appeal concerned only with the question whether the adjudicating authority was justified in disallowing deductions under the said two heads. It had no occasion to examine the admissibility of the deductions under the remaining six heads obviously because the assessee s appeal did not question the grant of such deductions. Admissibility of the said deductions co....

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....ed of the other part of this order. If the doctrine of merger were to be applied in a pedantic or wooden manner it would lead to anomalous results inasmuch as a party who has lost in part can by getting his appeal dismissed claim that the opposite party who may be aggrieved of another part of the very same order cannot assail its correctness no matter the appeal earlier disposed of by the Court or authority had not examined the correctness of that part of the order. 15. We have in the light of the above no hesitation in holding that the order passed by the Tribunal dismissing the appeal by the Revenue on the doctrine of merger is erroneous and unsustainable. We accordingly allow these appeals, set aside the impugned order and remand the ....