The jurisdiction of the Commissioner to entertain a revision petition. - Income Tax - 195/CBDT

INSTRUCTION NO 195/CBDT, Dated: July 30, 1970 Section(s) Referred: 264(4)(c) Statute: Income - Tax Act, 1961 I am directed to say that the scope of the above noted provision was considered by the Ministry of Law in a recent case, vide copy of their note dated 18th May, 1970 attached herewith. They have held that the above noted provision has to be construed so as to mean that the jurisdiction of the Commissioner to entertain a revision petition from an assessee against an order could be barred only if an appeal against that order has been preferred by the assessee before the Tribunal and not where such an appeal has been preferred by the Department. This legal position is brought to your notice. NOTE RECORDED BY THE MINISTRY OF LAW DATED 18th May, 1970. The short question for our consideration is whether the jurisdiction of the CIT would be barred u/s.264(4)(c) of the I.T.Act,1961, only if an appeal to the Appellate Tribunal has been preferred by the assessee or it would be so barred if an appeal to the said Tribunal is preferred by the Department also. The facts from which the present Section arises have been stated at pp. 9-12/Notes. On a comparison, of Section 253 264 of the said Act, it appears that while the remedy of an appeal to the Tribunal is open both to the Assessee and the Department the remedy of revision u/s.264 if open to the Assessee. The Commissioner has, of course, power to pass an order of his own motion u/s.264. It can be noticed that u/s.264(4)(a), the Commissioner is not to revise any order in the case of an appeal to the Tribunal unless the assessee has waived his right of appeal. It is therefore, clear that the remedy of revision u/s.264 is a remedy for the assessee. If it is said that the filing of an appeal before the Tribunal by the Department would also bar the jurisdiction of the Commissioner under the said Section 264, this special remedy available to the assessee would be denied to him independently of any action on his part. Therefore, Section 264(4)(c) must be so construed as to mean that the jurisdiction of the Commissioner would be barred only if an appeal has been referred to the Tribunal by the Assessee.