1983 (9) TMI 102

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....lay. It is stated in the application that the principal officer of the company, who was dealing with the taxation matters and who was also in the custody of the relevant files including the order of the Commissioner, had fallen ill and was confined to bed in the month of February 1981. That the principal officer, Shri Madan Mohan Sharma, was ill from 9-2-1981 to 28-2-1981 is also supported by a medical certificate. It was also contended before us by the counsel for the assessee that a challan for paying the appeal fee was obtained from the office of the ITO immediately after the recovery of the principal officer on 2-3-1981, 1-3-1981, being a holiday. The appeal fee was paid on 3-3-1981. The appeal was also filed before the Tribunal on the ....

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....ted proceedings under section 263 of the Act as he was of the opinion that the assessment made by the ITO was erroneous insofar as it was prejudicial to the interests of the revenue. He was of the view that after the taking over of the electricity business by the U. P. State Electricity Board with effect from 11/12-8-1975, the assessee had carried on no business in the year under appeal and, therefore, it was not entitled to any depreciation. After giving the assessee an opportunity of being heard, he passed the following order on 22-12-1980 : "I have considered these arguments. So far as the depreciation is concerned, the company ceased to, be the owner of the plant and machinery with effect from 11/12-8-1975. In the assessment year und....

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....d not get merged with the order of the ITO or vice versa. According to him, therefore, there was no general principle that if the matter had been referred to the IAC under section 144B, the Commissioner had no jurisdiction to interfere in that order with reference to any item included in the total income or total loss. He contended that the allowance of depreciation of Rs. 1,40,397 was never the subject of reference to IAC. The ITO had only referred to the IAC under section 144B, the question of disallowance of depreciation amounting to Rs. 47,712 on service lines. He, thus, contended that the amount of Rs. 1,40,397 being the depreciation on other items, was not the subject of reference to the IAC under section 144B and, therefore, the juri....