1997 (8) TMI 52 - HC - Income Tax

Issues Involved:

1. Legality of the Commissioner's notice under section 263 of the Income-tax Act, 1961.
2. Jurisdiction of the Commissioner to revise the assessment order.
3. Correct rate of depreciation applicable to staple fibre yarn machinery.
4. Merger of the original assessment order with the appellate authority's order.
5. Maintainability of the writ petition against the show-cause notice.

Issue-wise Detailed Analysis:

1. Legality of the Commissioner's notice under section 263 of the Income-tax Act, 1961:

The Commissioner of Income-tax, Madurai, issued a notice under section 263 of the Income-tax Act, 1961, proposing to revise the assessment order for the assessment year 1982-83. The notice stated that the depreciation on staple fibre yarn machinery was erroneously allowed at 15% instead of 10%, which was prejudicial to the interests of the Revenue. The learned single judge quashed this notice, stating that the issue of depreciation was already considered by the appellate authority, and thus, the Commissioner had no jurisdiction to revise it under section 263.

2. Jurisdiction of the Commissioner to revise the assessment order:

The Department contended that the Commissioner had the jurisdiction to revise the assessment order under section 263, as the issue of the correct rate of depreciation was not specifically addressed in the appellate order for the assessment year 1982-83. The appellate authority had considered the depreciation rate for earlier assessment years but not for 1982-83. The learned single judge disagreed, stating that the issue of depreciation was part of the appeal and thus could not be revised by the Commissioner.

3. Correct rate of depreciation applicable to staple fibre yarn machinery:

The Revenue argued that the staple fibre machinery was entitled to a 10% depreciation rate, not 15%, as allowed by the Inspecting Assistant Commissioner. The appellate authority's order for earlier years did not support a 15% rate for staple fibre machinery. The Commissioner, exercising his revisional power, sought to correct this by issuing the notice under section 263.

4. Merger of the original assessment order with the appellate authority's order:

The assessee contended that the original assessment order had merged with the appellate authority's order, and thus, the Commissioner could not revise it under section 263. The learned single judge agreed, stating that the appellate authority had considered and allowed the depreciation claim, and thus, the original order no longer existed for revision.

5. Maintainability of the writ petition against the show-cause notice:

The Department argued that the writ petition was not maintainable as it was filed against a show-cause notice. The assessee should have responded to the notice and pursued remedies under the statute. The court noted that the writ petition was entertained, and interim relief was granted, allowing the Commissioner to pass final orders but not to give effect to them until the writ petition's disposal.

Conclusion:

The High Court set aside the learned single judge's order and restored the Commissioner's notice under section 263. The court directed the Commissioner to communicate the final order dated March 21, 1988, to the assessee, who would have 60 days to file an appeal before the Income-tax Appellate Tribunal. The court emphasized that the assessee could raise all contentions before the Tribunal. The writ appeal was allowed, and no costs were ordered.

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