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1990 (3) TMI 361 - CALCUTTA HIGH COURTExtract: .......e jurisdiction of the Commissioner raised before it, the order of the Tribunal cannot be said to be erroneous because of the finding of fact made by it on the merits of the case. Under these circumstances, any answer given to the question raised would be academic and we, therefore, decline to answer the question. There will be no order as to costs.
Issues Involved:
1. Jurisdiction of the Commissioner u/s 263 to revise an assessment order passed by the ITO pursuant to directions given by the IAC u/s 144B. 2. Whether the ITO made sufficient enquiry regarding the sale of silver utensils. Summary: Issue 1: Jurisdiction of the Commissioner u/s 263 The primary legal question was whether the Commissioner could invoke section 263 of the Income-tax Act, 1961 to revise an assessment order passed by the Income-tax Officer (ITO) following directions from the Inspecting Assistant Commissioner (IAC) u/s 144B. The Tribunal initially held that section 263 could not be applied to such orders. However, the High Court clarified that section 263, as it stood at the material time, allowed the Commissioner to revise any order passed by the ITO if it was erroneous and prejudicial to the interests of the revenue. The Court noted that the amendment to section 263, which included an Explanation stating that orders passed by the ITO based on directions from the IAC would be considered as orders passed by the ITO, was clarificatory and not conferring new jurisdiction. The Court cited judgments from the Andhra Pradesh and Madhya Pradesh High Courts supporting this interpretation. Issue 2: Enquiry Regarding Sale of Silver Utensils The Commissioner argued that the ITO had not made adequate enquiries into the sale of silver utensils, which led to an erroneous and prejudicial assessment order. The Commissioner pointed out that no details were provided about the silver items sold, their descriptions, or the buyer. The Tribunal, however, found that the ITO had indeed made enquiries, as evidenced by correspondence between the ITO and the assessee. This finding was not challenged by the Commissioner as perverse or misdirected in law. Consequently, the Tribunal concluded that the provisions of section 263 could not be invoked on the facts of the case, as the ITO had made the necessary enquiries. Conclusion: The High Court acknowledged that while the Tribunal might have erred in its legal interpretation of the Commissioner's jurisdiction under section 263, the Tribunal's factual finding that the ITO had made sufficient enquiries into the sale of silver utensils stood unchallenged. Therefore, the Commissioner's decision to revise the ITO's order under section 263 was deemed erroneous. Given this context, the Court declined to answer the legal question posed, deeming it academic, and ruled that there would be no order as to costs.
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