TaxTMI 
TaxTMI 
2000 (9) TMI 33
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....ncome-tax Officer under power given in section 263 of the Income-tax Act, 1961? 2. Whether, on the facts and circumstances of the case, the Tribunal was correct in law in taking the view that the Income-tax Officer's order had merged in the appellate order and, therefore, the revision order could not be passed ?" The factual background leading to the above reference is as under : The assessee has taxable income from the business of a running theatre in the name and style of Shashi Theatre Private Limited, Mehsana. In his return for the assessment year 1980-81, he claimed investment allowance under section 32A of the Income-tax Act for the following items : &....
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....sp; 5,35,424 --------- The Assessing Officer allowed investment allowance for items-machinery, A. C. plant, generator A. C. and electrical fittings. The assessee went up in appeal under section 246 of the Act. The ground among others urged in appeal was against non-grant of investment allowance on items of plaster of paris, furniture and acoustics to the extent of the amounts mentioned against each of the said items. In considering the claim for grant of inves....
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....mmissioner of Income-tax passed in revision under section 263 of the Income-tax Act, the assessee approached the Income-tax Appellate Tribunal. The Tribunal concluded that the revisional order of the Commissioner of Income-tax is invalid. It is on the above facts that the two questions of law have been referred to this court for answers by us. Learned counsel appearing for the assessee, Manish J. Shah, by relying on paragraph 3 of the order of the Commissioner of Income-tax (Appeals) contends that the question of grant of investment allowance or items disallowed by the Assessing Officer as also on items allowed by the Assessing Officer came up for consideration and decision before the appellate authority. The Tribunal was, therefore, rig....
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.... Ltd.'s case [1998] 231 ITR 50. The provisions contained in clause (c) of the Explanation to section 263(1) of the Act deserve to be noted : "(c) 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 1st day of June, 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." The above provision has been inserted by an amendment by the Finance Act, 1989, with effect from, June 1, 1988. The said provision has been given retrospective effect to the appeals filed on or before or after June 1, 1988. In view of....
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....cted by the Assessing Officer, it was necessary to go into the question of validity of the grant of investment allowance for the items already made admissible by the Assessing Officer. The total claim for investment allowance in the return of the assessee in the sum of Rs. 5,35,434 was before the appellate authority. It is true that against the order of the Assessing Officer there is no appeal provided to the Revenue but in the assessee's appeal the Department was a party. The ground that on all the items no investment allowance should be granted as the "theatre" does not fall in the definition of " small scale industry" was the ground available to the Revenue and could and ought to have been raised before the appellate authority. Under the....