Oriental Bank of Commerce Vs. DCIT (Delhi HC)- We have considered the rival contentions and gone through the record carefully. The order passed under Section 263 became final. Learned Commissioner while exercising the powers under Section 263 has decided the issue himself and directed the Assessing Officer to re-compute the income on the basis of his decision. He has not relegated the issue to the file of the Assessing Officer for re- adjudication.
He specifically held that capital loss on account of transfer of US 64 unit Scheme cannot be set off against the long term capital gains as well as the assessee cannot be permitted to carry forward this loss for set up in the future years. Assessing Officer has just executed this order. Until and unless this order is revoked, assessee cannot agitate the issue on merit. The judgment relied upon by the assessee are not application on the facts. In the decision of Hon’ble Calcutta High Court, sub-section (4) of Section 249 was brought on the state book w.e.f 1.10.1975. As per this section before entertaining any appeal of an assessee it has to be seen whether assesse has to pay the undisputed tax. In that case, assessee has not paid the tax and, therefore, its appeal was dismissed by the learned CIT (Appeals) on the ground of non-maintainability. The appeal was filed by the learned CIT (Appeals) on 09.01.1975. Hon’ble High Court has held that right to appeal is a statutory right and an appeal is a continuation of original proceedings. In that case, the right of the assessee to prefer an appeal was considered as accrued when the notice under Section 143(2) of the Act was issued. According to the Hon’ble High Court, the right of appeal having being accrued to the assessee prior to 01.10.1975 when the amendment came into force. The date of appeal was considered neither relevant nor material and the appeal of the assessee was directed to be decided on merit before the learned CIT (Appeals). The facts of that case are quite distinguishable to the facts of the present case. Similarly, the facts in the case of CIT vs. Mahabir Prasad (125 ITR 165) relied upon by the assessee are quire distinguishable. In that case, the issue before the Hon’ble High Court was whether assessee can challenge levy of interest along with the additions in one common appeal. The Hon’ble High Court has held that the assessee is entitled to contest levy of interest in an appeal against the quantum order before the Learned First Appellate Authority. In the present case, the dispute is altogether different. Here the issue is whether an executing authority can travel beyond the order while executing that order. In our opinion, it is not permissible for the executing authority to look beyond the order it is required to execute. Thus, we do not find any merit in the appeal of the assessee. It is dismissed.
HIGH COURT OF DELHI
Judgment pronounced on: 30.01.2012
+ ITA No. 1138/2011
ORIENTAL BANK OF COMMERCE
versus
DY COMMISSIONER OF INCOME TAX
ORDER
