1987 (1) TMI 45

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....MEN J.-Pursuant to the direction of this court in O. P. No. 1917 of 1978, the following questions have been referred to us by the Income-tax Appellate Tribunal, Cochin Bench: " (1) Whether, on the facts and in the circumstances of the case, and in the absence of an appeal being filed against the order of the 'first Appellate Assistant Commissioner who disposed of the appeal ex parte' directing ....

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....ed to the transferee company on the basis of an order made by this court under section 394(2) of the Companies Act, 1956, and the capital of the company representing the value of those assets was accordingly reduced. The Income-tax Officer included a sum of Rs. 19,672 as income of the assessee on the basis of computation made under section 41(2) of the Income-tax Act, 1961. The Appellate Assistant....

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....ial depreciation is to be withdrawn. The assessment order is, therefore, set aside and the Income-tax Officer is directed to do the assessment afresh in accordance with law and, in particular, to compute the profit under section 41(2) in accordance with the provisions of the Incometax Act and the rules made thereunder. " (emphasis supplied) Accordingly, the Income-tax Officer completed the asse....

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....ion contained in the order of the Appellate Assistant Commissioner was to correctly recompute the profit in terms of section 41(2). In so far as the applicability of section 41(2) is concerned, that was a final order which has remained unchallenged. The subsequent proceeding of the Income-tax Officer was only in obedience of that order. The order of the Appellate Assistant Commissioner is thus res....