R.K. Gulati, J. - (1.) THIS writ petition is directed against the order dated January 29, 1986, passed by respondent No. 1, the Commissioner (Appeals), Kanpur. By the impugned order, respondent No. 1 has set aside the assessment for further investigation on a limited issue in respect of the petitioner's claim for deduction of an amount as business expenditure representing incentive bonus which had been disallowed by the Inspecting Assistant Commissioner (Assessment), the Assessing Officer.
(2.) BRIEFLY, the facts are that in the assessment year 1980-81, the petitioner made a claim for deduction of Rs. 12,68,683, out of its gross income being the amount paid as incentive bonus to its employees. It appears that a similar claim was also made, though for a different amount, in the assessment year 1981-82. That claim was disallowed on several grounds by the Assessing Officer including that the claim did not satisfy the requisite conditions of Section 36(1)(ii) of the Income-tax Act, 1961 ('the Act'). One such ground for disallowance of the petitioner's claim was that the payments representing incentive bonus were not genuine and it was a bogus claim. The findings recorded in this regard were that relevant entries, instead of being made in the wage registers, were recorded on a separate sheet. The payments were received against thumb impressions. In a large number of cases, the thumb impressions were identical or similar. In the first appeal, these findings were sustained. During the hearing of that appeal, the Assessing Officer was required to submit a remand report It appears that during remand proceedings, an expert's opinion on the genuineness of the thumb impressions was called for. The doubts of the Assessing Officer that in most of the cases the thumb impressions were identical or similar was supported by the said report. The Commissioner (Appeals), after having discussed the remand report and other grounds of disallowance, confirmed the action of the Assessing Officer. As regards the genuineness of the claim, he held as under : "On the other hand, when the assessee produced some sample vouchers showing payments of four different departments, it was found that adjustment of the loan to the workers was made against incentive bonus and the payments were shown as received by the workers but the thumb impressions in respect of such receipts were found to belong to persons other than the workers. When this default was pointed out, the explanation offered was that the workers had authorised some other persons to receive payments. Surprisingly, this fact was not noted in the wage sheets. Even the statements of such authorised persons have been found to be unreliable. Therefore, the clear impression is that for reasons best known to the appellant company, the nature of the payment (and to the extent incurred) is being withheld and even the genuineness of the payment is doubtful." By the time the assessment for the year in dispute was finalised, the above proceedings for the year 1981-82 had already taken place but the matter was pending adjudication in second appeal before the Tribunal. The Assessing Officer basically relied on the findings recorded in the assessment year 1981-82 when he disallowed the claim for the year in question. Being aggrieved, the petitioner appealed to the Commissioner (Appeals), respondent No. 1. During the pendency of the appeal before respondent No. 1, the Tribunal decided the appeal for the assessment year 1981-82. It reversed the findings on each ground on which the disallowance was sustained. The expert's opinion was discarded by the Tribunal on the ground that the expert had not recorded any categorical finding about the forgery in the thumb impressions. For this view, the Tribunal relied upon the following observations in the expert's report: "In spite of the above, as many thumb impressions seem to be similar to one another, without photo enlargement, scientific and satisfactory opinion cannot be given." When the appeal for the year in dispute was heard, the petitioner relied upon the order of the Tribunal for the year 1981-82 which was in its favour. The Commissioner (Appeals) considered the matter afresh. He questioned the petitioner's representation about the genuineness of the thumb impressions. The stand taken on behalf of the petitioner was that the year 1981-82 was a strike period, and, therefore, one person took authorisation from 5 to 6 persons to receive incentive bonus on their behalf while 1980-81 was a normal year and there was no strike. It was claimed that to this extent the facts of assessment year 1981-82 are not exactly similar to the facts of assessment year 1980-81. The stand of the petitioner before the Assessing Officer, however, was that the facts in the two years were exactly similar and there was no difference in the two years. On a perusal of the expert's opinion, the Commissioner (Appeals) found that on one date, 15 to 20 thumb impressions were said to be alike. The petitioner's representative expressed his inability to file detailed information without taking photo enlargements of the thumb impressions. In this view of the matter and for other reasons stated in his order he set aside the assessment for the investigation. He directed that while looking into the genuineness of payment, if the Inspecting Assistant Commissioner decides to get the thumb impressions examined, he should not stop in the middle but should get them examined by photo enlargement also. The assessee should be given opportunity to explain before any material is used against him. The Commissioner also gave some more directions regarding the line on which the case should be investigated and then determine the admissibility of the assessee's claim, viz., incentive bonus.
(3.) IT is against the aforesaid order that the present writ petition has been filed seeking a writ of certiorari and a writ of mandamus directing the Commissioner (Appeals) to follow the order of the Tribunal and to grant the petitioner the appropriate relief. We have heard learned counsel appearing for the petitioner. It is claimed that in the hierarchy of the Income-tax Department, the Commissioner (Appeals) is an authority subordinate to the Tribunal. In setting aside the assessment for fresh consideration, the Commissioner (Appeals) has acted without jurisdiction and in disregard of judicial propriety and discipline. It is urged that the question which came up for consideration before the Commissioner (Appeals) was no longer an open issue inasmuch as a similar question on identical facts had already been settled by a higher authority and that had become final with the dismissal of the application under Section 256(2) of the Act filed by the Revenue.;