S.T Desai, J.:— A very unusual question arises for our determination on this reference and ultimately the question is whether the Tribunal in the order which is before us has stated what it meant or has failed to say what it meant. The Tribunal itself, as we shall presently point out, has on a subsequent occasion stated as to what is meant by the order under consideration. Now, we are not concerned with what the Tribunal might or might not have meant. We are primarily concerned with what the Tribunal has stated it meant and no more. Therefore, although the Tribunal has in a later order stated what the intended meaning and effect of the prior order was, we shall confine our consideration to the original order round which the whole argument has turned before us.

2. The assessee is Indo-Aden Salt Works Co., a firm, which sold its business to a private limited company on August 24, 1949, (during the accounting year S.Y 2005). The assessment year is 1950-51 and in the relevant year of account the assessee claimed relief under the first part of section 25(4) on the ground that there was a succession. The Income-Tax Officer conceded the assessee's claim so far as it related to income-tax, but he declared to grant any relief to the assessee in respect of super-tax and the ground on which relief in respect of super-tax was declined was that super-tax had not been paid for the first time either for the year beginning on the 1st day of April, 1920, or for the year beginning on the 1st day of April, 1921. It is not necessary for us on this reference to set out the provisions of section 25 as well as certain other provisions of law which relate to relief in respect of income-tax or super-tax on the principle of succession. There was an appeal to the Appellate Assistant Commissioner and the only point raised by the assessee firm before him was that relief in respect of super-tax had wrongly been denied to it. That was the only ground urged in that appeal. The Appellate Assistant Commissioner did not go into the merits of the question but dismissed the appeal on another ground. He held that a registered firm not being an assessable entity quoad super-tax could not claim any such relief. At that time he did not pass any order for enhancement of the assessment as was done subsequently by another officer who heard another appeal as the Appellate Assistant Commissioner. The only order that he passed was that the appeal was dismissed.

3. The matter was carried to the Tribunal and the Tribunal reversed the decision of the Appellate Assistant Commissioner. Counsel who appeared for the assessee before the Tribunal requested the Tribunal not to dispose of the question about super-tax as the assessee wanted to lead certain evidence before the Appellate Assistant Commissioner in the matter of the claim relating to super-tax.

4. Since the principal controversy before us has turned on the actual meaning and effect of the order of the Tribunal in disposing of that appeal, we may state the material part of that order in extenso:

“Mr. Palkhivala for the assessee did not desire us to go into the merits of the view taken by the Income-Tax Officer, for he said that the assessee wanted to lead certain evidence before the Appellate Assistant Commissioner to rebut certain statements made by the Income-Tax Officer but the Appellate Assistant Commissioner did not find it necessary to go into this on the view he was going to take. He, therefore, desired that the Tribunal should set aside the Appellate Assistant Commissioner's order and direct him to deal with the assessee firm's claim for relief from super-tax on its merits. This request is not only reasonable but proper. I would therefore vacate the Appellate Assistant Commissioner's order and restore the appeal with direction that it be disposed of on its merits.”

5. Now, we shall have to consider whether by this order the Tribunal left the matter open to the Appellate Assistant Commissioner to deal with it as if the whole controversy in the appeal was at large or whether this order should be read as directing the Appellate Assistant Commissioner to go only into the question relating to relief from super-tax on its merits.

6. When the matter went back to the Appellate Assistant Commissioner pursuant to the directions given by the Tribunal, he fully inquired into the facts relating to super-tax relief and recorded his finding with which we are not concerned on this reference. He did not stop at that. Suo motu he went into the question whether there was any discontinuance of the business in 1933. He held that there was such discontinuance and no relief under section 25(4) could be granted to the assessee firm either for income-tax or super-tax. Since the Income-Tax Officer had already granted relief in respect of income-tax to the assessee, he withdrew that order for relief after giving due notice of enhancement to the assessee. One of the contentions of the assessee before the Appellate Assistant Commissioner at this hearing was that only the question of relief in respect of super-tax was directed by the Tribunal to be determined by him. The Appellate Assistant Commissioner, however, took the view that the Tribunal, in referring to the earlier order of the Appellate Assistant Commissioner, had used the expression “vacated” and, therefore, the Tribunal had vacated the entire order made in the the earlier appeal. According to him, it was open to him to go into the entire appeal.

7. The matter was carried in appeal once again to the Tribunal. The Tribunal in its order stated:

“The assessee's prayer to the Tribunal, to quote from the aforesaid order was ‘the Tribunal should set aside the Appellate Assistant Commissioner's order and direct him to deal with the assessee firm's claim for relief from super-tax on its merits.” This request being not only reasonable but proper, the Tribunal vacated the Appellate Assistant Commissioner's order and restored the appeal with the direction that it be disposed of on its merits. Obviously, the direction of the Tribunal has to be read in the light of its observations made earlier in the judgment. The direction given to the Appellate Assistant Commissioner (hereinafter referred to as the ‘second Appellate Assistant Commissioner’) was clear and unequivocal, it was expressly limited to the disposal of the assessee's claim on its merits regarding super-tax relief under section 25(4) and the second Appellate Assistant Commissioner had no jurisdiction to travel beyond that. It would have been a different matter if no direction had been given by the Tribunal and the matter left at large or the appeal had been remanded to the Appellate Assistant Commissioner with power to dispose of the entire assessment proceedings in any manner he deemed fit. The Appellate Assistant Commissioner, in our opinion, has clearly misread the order of the Tribunal when he says ‘However, the order of the Tribunal does not restrict my powers in any way’. As already observed, the Appellate Assistant Commissioner had only to decide the narrow and limited point of super-tax relief on its merits, all other points at issue having already become conclusive and binding on the parties.”

8. We have already observed that on this reference we are concerned only with the meaning and effect of the earlier order of the Tribunal as it reads and we would not permit ourselves to take into consideration what the Tribunal might have thought it meant when that order was made.

9. It has been urged before us by Mr. G.N Joshi, learned counsel for the Revenue, that the powers of the Appellate Assistant Commissioner under section 31 are very wide. We agree that the powers of the Appellate Assistant Commissioner are very wide in the matter of disposal of any appeal taken to him. They are wider than the appellate powers which an appeal court exercises under the Civil Procedure Code and no analogy should be drawn between powers exercisable under section 31 of the Act and the powers of a court deciding an appeal under the Civil Procedure Code. The provisions of the Code relating to appeal do not apply to an appeal from the assessment order made by an Income-Tax Officer. Strong reliance was placed by learned counsel on sub-section (3) of section 31, the relevant part of which is as under:

“31.(3) In disposing of an appeal the Appellate Assistant Commissioner may, in the case of an order of assessment,

(a) confirm, reduce, enhance or annul the assessment,…”

10. There can be no dispute and it has not been disputed before us that in hearing an appeal the Appellate Assistant Commissioner wields very wide powers and in the exercise of those powers he can enhance or annul the assessment. He may confirm the assessment, he may reduce the amount of tax, he may enhance the amount of tax or he may even annul the whole assessment. Then says Mr. Joshi, when the matter was carried in appeal to the Tribunal, the Tribunal in terms vacated the order passed by the Appellate Assistant Commissioner. Not only did the Tribunal vacate that order but it restored the appeal and gave an express direction that the appeal should be disposed of on its merits. According to learned counsel, therefore, the effect of the decision of the Tribunal was that there was no order at all passed by the Appellate Assistant Commissioner and the whole matter was opened up afresh and it was competent to the Appellate Assistant Commissioner to deal with all the aspects of the matter and exercise every single power vested in him under section 31. It is stated that the true meaning and effect of that order was that the Appellate Assistant Commissioner was directed to dispose of the appeal as if he was hearing it for the first time. It is further stated that it was not a mere order of remand and the powers of the Appellate Assistant Commissioner remained unfettered in the absence of any restrictions imposed by the Tribunal in the matter of the disposal of the appeal. That leaves us with the short question, viz., that of interpreting the order of the Tribunal.

11. It has been argued before us by Mr. Palkhivala, learned counsel for the assessee, that when the Appellate Assistant Commissioner first disposed of the appeal, the question of income-tax relief had become final. It became final when he passed the order in respect of super-tax and nothing that had happened thereafter before the Tribunal could disturb the position. We are unable to accept this contention. Of course, if the matter had rested there and not gone before the Tribunal, the order of the Appellate Assistant Commissioner would have had finality. But once the matter went to the Tribunal and the Tribunal decided that for itself, it becomes necessary to consider what the order of the Tribunal was before it can be said whether the order of the Appellate Assistant Commissioner had become final or not. That order could be varied, modified, confirmed or set aside by the Tribunal. For that one would have to consider the order of the Tribunal.

12. The next contention of Mr. Palkhivala is that the Tribunal had no jurisdiction to pass an order so as to empower the Appellate Assistant Commissioner to enhance the assessment. The Tribunal, it was stated, had no power to enhance the assessment. The Appellate Assistant Commissioner could not sit in appeal over his own judgment or over the judgment of an Appellate Assistant Commissioner. The Tribunal, it is stated, could not indirectly do what it had no power to do directly. It is not suggested on behalf of the Revenue that the Appellate Assistant Commissioner can sit in appeal over his own judgment or the judgment of another Appellate Assistant Commissioner; nor has it been suggested by learned counsel for the Revenue that the Tribunal can do indirectly what it has no power to do directly; nor has it been suggested that the Tribunal had power to enhance the assessment. These submissions do not carry the assessee's case any further. That brings us to the consideration of the real contention of the assessee which turns on the interpretation of the Tribunal's order when it directed the Appellate Assistant Commissioner to dispose of the appeal on its merits. It appears from that order that it was a common ground before the Tribunal at the hearing of that appeal that it was a case of succession within the meaning of section 25(4). It is also clear that the only question which the Tribunal was asked to consider and which the Tribunal had jurisdiction to consider was whether the Appellate Assistant Commissioner was right in deciding the appeal on the sole legal contention that there was no right in the assessee to claim relief in respect of super-tax. The Tribunal having reached the conclusion that the Appellate Assistant Commissioner had taken a technical and narrow view of the matter would have proceeded to go into the merits of the claim for relief in respect of super-tax. It was at that stage that counsel for the assessee stated that he wanted to lead certain evidence in respect of the claim for the assessee-firm for relief from super-tax. That this was what happened before the Tribunal is expressly stated in the order of the Tribunal and it is only in this background and in this context that the words relating to vacating the order of the Appellate Assistant Commissioner and restoring of the appeal must be read. It is true that read by itself the last sentence of the order would suggest that the Appellate Assistant Commissioner was being directed to deal with the entire appeal on its own merits. The order of the Tribunal must, however, be read and understood in the proper context and in the light of all that is stated in the order itself and if we do so, as indeed we should do so, there is considerable force in the submission on behalf of the assessee that the order must be read as restricting the scope of the inquiry by the Appellate Assistant Commissioner only to the question of merits affecting the claim for relief from super-tax. We must, however, observe that there is in this case scope for the contention very strongly pressed before us by Mr. Joshi. On a consideration of the matter, we prefer to take the view that the order of the Tribunal required the Appellate Assistant Commissioner to inquire only into the matter of relief from super-tax on its merits.

13. Our answer to the question will be in the negative. There will be no order for costs in this reference.

Reference answered in the negative.