9911796707
TMI Blog1986 (2) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... other issues, if necessary, be considered. The first ground in the appeal is that the order passed by the Commissioner was outside the scope of section 263, as he had no jurisdiction to revise the order of the IAC under section 263 and as such, the impugned order is null and void. On this issue, we have heard both the sides. The assessee relied upon the Special Bench judgments of the Tribunal in the cases of East Coast Marine Products (P.) Ltd. v. ITO [1985] SOT 295 (Hyd.) and Bela Singh Pabla v. ITO [1982] 1 ITD 370 (Delhi). Basing his contentions on these judgments, the learned counsel for the assessee submitted that the order having been made by the IAC on31-3-1982and the IAC having not been mentioned in section 263, the assumption of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bombay High Court judgment in the case of R. M. Goculdas v. CIT [1985] 151 ITR 67. 4. We have given careful consideration to the rival submissions. The Commissioner made the impugned order on 26-3-1984 and necessarily he would have called for the record under section 263 and examined the same, prior to that date, to find out whether the order made therein was erroneous so far as to be prejudicial to the interests of the revenue. There is no dispute that the order that he called for and examined along with the record was made by the IAC under section 143(3) of the Act. Under section 143(3), the IAC could make an order himself only if he had been so authorised by the Commissioner, by a general or special order in writing that the powers c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im. It is, therefore, clear that the Commissioner could exercise powers, under section 263, only with regard to the specific orders mentioned therein. 5. Now, when we examine section 263, as it then was, we find from its sub-section (1) that the Commissioner could call for and examine the record of any proceedings under this Act, and if he considered that any order passed therein by the Income-tax Officer [emphasis supplied] was erroneous insofar as it was prejudicial to the interests of the revenue, he might, after giving the assessee an opportunity of being heard and after making or causing to be made such enquiry as he deemed necessary, pass such order thereon as the circumstances of the case justified. This is very clear that only ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITO and the functions to exercise those powers can be conferred upon the IAC by the Commissioner, there cannot be specific date covering all cases to make the Explanation retrospective. Even if, we were to examine the view that an Explanation is parliamentary exposition of the law that already existed, we find a contradiction insofar as this Explanation is concerned, because the Legislature, in its legislative wisdom, has made this Explanation effective from1-10-1984. 7. On each of the above grounds, the order of the Commissioner is a nullity in law. Now, if it may be argued, that whether the Explanation is retrospective or not, one reasonable view that can be taken is that it is retrospective in nature. In such a situation, we have to r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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