INCOME TAX OFFICER Vs. KHALID MEHDI KHAN

JUDGEMENT

(1.) THESE two writ petitions filed by the Income-tax Officer raise a common question for our consideration and can be disposed of together. It is sufficient if we state the facts in W. P. No. 1440/1976.

(2.) IN respect of the assessment years 1971-72 and 1972-73 the respondent-assessee filed returns of his income showing the receipt of certain amounts towards his l/5th share in the lease amount in respect of Skyline Theatre building, furniture, fittings and machinery. The said return was accepted by the INcome-tax Officer. However, the Commissioner of INcome-tax, in exercise of his powers under Section 263 of the INcome-tax Act, revised the order of assessment and directed the INcome-tax Officer to reassess the same according to law. Under the said order dated February 27, 1976, the Commissioner of INcome-tax expressed his prima facie opinion that the lease income from the said theatre should be assessed in the hands of the association of persons comprising of the respondent-assessee herein and other interested persons, and not separately in the hands of each assessee. As against the said order of the Commissioner, the assessee preferred appeals before the INcome-tax Appellate Tribunal, Hyderabad. Two appeals were preferred in respect of the two assessment years. Along with his appeals, the assessee applied for stay of further proceedings in pursuance of the orders of the Commissioner. The Appellate Tribunal, by its order dated April 2, 1976, granted stay of further proceedings, including the making of a fresh assessment in pursuance of the orders of the Commissioner. Under the same order, the Tribunal directed the appeals to be posted for hearing within two months from the said date. It is against the said order granting stay that these two writ petitions have been filed by the department.

(3.) THE question that then arises is, whether the introduction of Sub-section (2A) of Section 153 of the Act makes any difference to the principle enunciated by the Supreme Court in the above decision. Sub-section (2A) of Section 153 reads as follows :