The principle of merger of assessment orders does not apply if the order passed by the ITO was set aside by the AAC and had not been challenged before the appellate authority. The Commissioner's exercise of revisional jurisdiction within the prescribed period is valid.

M.R.Sharma, J.

1. The following question of law has been referred to us for our opinion by the Income-tax Tribunal, Chandigarh Bench :

" Whether, on the facts and circumstances of the case, the original assessment orders dated April 7, 1971, stood merged in the Appellate Assistant Commissioners order dated November 15, 1972, before the Commissioner initiates revision proceedings ?"

2. The facts giving rise to this reference may briefly be stated as under: Vide partnership deed dated February 13, 1968, a partnership consisting of 12 partners to work under the name and style " New Diwan Oil Mills" was constituted. On 20th November, 1968, two of the partners, namely, Shri Mithan Lal and Shri Sadhu Ram, retired from the partnership and Smt. Shanti Devi was introduced as a new partner in the firm. For the assessment year 1969-70, the assessee-firm filed two returns of its income for the period from 13th February, 1968, to 20th November, 1968, and 21st November, 1968, to 31st March, 1969. The ITO, Chandigarh, vide two separate orders passed on April 7, 1971, framed two assessments in respect of the incomes of the said two periods. Later on, the ITO in exercise of the jurisdiction under Section 147(b) of the I.T. Act (hereinafter referred to as "the Act"), reopened the case and clubbed the income for the two periods. The assessee went up in appeal against the order dated April 20, 1972 of the ITO and the AAC, vide his order dated November 15, 1972, allowed the appeal by holding, that the fact that the firm would not be dissolved on the death or retirement of a partner was known to the ITO because the same was incorporated in the partnership deed (annex. A) and, for that reason, jurisdiction under Section 147(b) of the Act could not be exercised. The AAC, therefore, set aside the order of the ITO whereby he had clubbed the incomes for the two periods. In the meantime the Commissioner exercised revisional powers and set aside the original order of the ITO on the ground that the case was one of change in the constitution of a firm. He also directed the ITO to reframe the assessment in accordance with law.

3. The assessee filed an appeal against the order of the Commissioner which order was upheld by the Appellate Tribunal. In other words, the remand order passed by the Commissioner had become final.

4. The learned counsel for the assessee has vehemently argued that the order of assessment passed by the ITO had merged in the order passed by the AAC on appeal and that such an order could not be revised by the Commissioner in exercise of powers under Section 263 of the Act. In support of his contention he has placed reliance upon a Division Bench judgment of the Bombay High Court in CIT v. Tejaji Farasram Kharawala [1953] 23 ITR 412. It was observed therein (headnote):

" When an appeal is provided from a decision of a Tribunal and the appeal court after hearing the appeal passes an order, the order of the original court ceases to exist and is merged in the order of the appeal court, and although the appeal court may merely confirm the order of the trial court, the order that stands and is operative is not the order of the trial court but the order of the appeal court."

5. The learned counsel also relied upon Gopal Chandra Sen v. ITO [1963] 50 ITR 87 (Cal), wherein a similar view had been taken.

6. The authorities relied upon by the learned counsel for the assessee are clearly distinguishable and do not apply to the facts of the instant case. The AAC set aside the order dated April 20, 1972, passed by the ITO whereby he had clubbed the incomes for the two periods. The earlier orders dated April 7, 1971, passed by the ITO had not at all been challenged before the appellate authority. The Commissioner revised these two orders and directed the ITO to reframe the assessment in accordance with law. On facts, therefore, the assessee cannot invoke the principle of merger of the order passed by the ITO in the order passed by the AAC