RAMLAL ONKARMAL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a reference under section 66(1) of the Income Tax Act by the Appellate Tribunal in the circumstances following :

(2.) IN the assessment completed on June 21, 1954, under section 23(3) for the R. N. Year 2009, for the assessment year 1953 -54, the Income Tax Officer included the following shares from the aforesaid firms : <FRM>JUDGEMENT_578_ITR44_1962.htm</FRM>

(3.) THE assessee filed an appeal against the assessment to the Appellate Assistant Commissioner on August 28, 1954, which was decided on September 15, 1956. While the above appeal was pending decision, the Commissioner of Income Tax on examination of the record found that the above Income Tax Officers order was prejudicial to revenue and accordingly, after due hearing, he passed his order dated June 4, 1956, that it to say, during the pendency of the appeal and by that order, he directed the Income Tax Officer that the assessment should be enhanced by Rs. 32,759 being the share from the aforesaid unregistered firm, Durgapur Tea Estate, because, in his opinion, such a loss should not have been set off in the assessment under the second proviso to sub -section (1) of section 24. The assessee thereupon filed an appeal to the Appellate Tribunal contending that the Commissioner of Income Tax had no jurisdiction to pass the aforesaid order, inasmuch as at the time of passing the order, an appeal was pending before the Appellate Assistant Commissioner against the assessment itself. Upon these grounds, the following question has been referred to this court :