9911796707
TMI Blog2007 (5) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... filed. According to the petitioner, respondent No. 4 examined and verified the books of account and on being satisfied, the claim for adjustment made by the petitioner was allowed and the assessment order was passed on December 4, 1997 under section 17(4) of the Act determining total value of the works contract at Rs. 1,19,88,147 and tax payable thereon at Rs. 1,11,437. Against the tax liability, respondent No. 4 granted credit of total tax paid at Rs. 1,07,834 being Rs. 61,757 by way of adjustment of excess tax paid for the periods in question. After expiry of two years from the date of assessment, respondent No. 4 issued notice on December 30, 1999 intimating the petitioner that the adjustment of excess tax paid for the years 1993-94 and 1994-95 against tax dues of the year 1996-97 was made in contravention of section 30 of the Act. The petitioner was directed to produce the books of account on January 7, 2000 and was asked to clarify as to why rectification of assessment under section 37 of the Act should not be made. In response to the aforesaid notice, the petitioner submitted petition dated January 7, 2000 objecting to the proposed rectification of the assessment. A pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding. Accordingly, while setting aside the order of rectification, a direction was issued to the Superintendent of Taxes to make a fresh rectification order after allowing the petitioner an opportunity of being heard. Although the rectification order passed was set aside by the revisional authority but the petitioner being aggrieved by the direction of the revisional authority for fresh rectification, preferred an appeal before the Assam Board of Revenue, Guwahati. The appeal was registered and numbered as Case No. 21/STA/01. The appeal has been dismissed by the impugned judgment by order dated June 4, 2002. Hence, this writ petition. I have heard Mr. R. K. Joshi, learned counsel for the petitioner as well as Mr. R. Dubey, learned Standing Counsel, Finance Department. Mr. Joshi, learned counsel for the petitioner, submits that the revisional authority could not have issued direction for making fresh rectification order after setting aside the earlier order passed on rectification proceeding. According to him, a fresh rectification proceeding was barred under section 37(1) of the Act. He has placed reliance on the decision of the Division Bench of this court as reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any order in appeal or revision under the Act, any change becomes necessary in the order of assessment or penalty, the appellate or revising authority may direct appropriate authority to amend the order of assessment or penalty accordingly. Apart from the above provision, which according to Mr. Joshi, learned counsel for the petitioner, is not applicable to the instant case, what is material to note is that the revisional authority upon setting aside the rectification order on the ground of violation of the principles of natural justice remanded the matter back to the same very authority for passing a fresh rectification order after allowing the petitioner an opportunity of being heard in accordance with law. The matter did not come to an end with the passing of the revisional order. The revision petition was filed by the petitioner making a grievance against the rectification order. It cannot be said that the revisional authority is left with only the option of either allowing or dismissing the revision petition and it cannot, upon setting aside the rectification order, remand the matter back to the same very authority, which had earlier issued rectification order. If such res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er providing reasonable opportunity of being heard. When the first rectification order was passed within the period of limitation, I am of the considered opinion that there was no restraint on the part of the revisional authority to remand the matter back to the same very authority to pass a fresh rectification order in accordance with law. If the argument advanced by the learned counsel for the petitioner that the revisional authority could not have issued direction for passing a fresh rectification order is accepted, the same will be antithesis to the provisions and spirit of the Act. In National Taj Traders [1980] 121 ITR 535 (SC); [1980] 1 SCC 370, the apex court in somewhat similar circumstances held that the kind of construction sought to be given as in the instant case would lead to manifest absurd result. The aforesaid case was relating to the orders passed under the provisions of the Income-tax Act, 1922. The Appellate Tribunal, while setting aside the order of the Commissioner remanded the matter back to him, with direction to dispose of the matter afresh after giving opportunity to the respondent-assessee, referred, inter alia, the following question for opinion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order, it could annul that order, it could after vacating it remand the case back to the Commissioner for making a fresh assessment in the light of the observations made by it in its judgment or it could, after calling for a remand report, rectify the erroneous order of the Income-tax Officer. Further, there was no period prescribed within which an appeal against the impugned order of the Commissioner had to be disposed of by the Tribunal and in the normal course on rare occasions such appeals would have been heard and disposed of before the expiry of two years from the date of the Income-tax Officer's order which was regarded as erroneous by the Commissioner. More often than not such appeals would come up for hearing after the expiry of the said period of two years a fact fully known and within the contemplation of the Legislature when it introduced the section in the Act in 1948. In these circumstances did the Legislature intend to attenuate or curtail the appellate powers which it conferred on the Appellate Tribunal in very wide terms under sub-section (4) by enacting sub-section (2)(b) prescribing a time-limit on the Commissioner's power to revise an erroneous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for, admittedly, the bar of limitation under sub-section (2)(b) was only on the Commissioner's power to make an assessment afresh and not on the Income-tax Officer. If this be the correct position then it is gravely anomalous that the Tribunal should not be in a position to set aside the Commissioner's order and remand the case back to the Commissioner for making a fresh assessment because in the meantime the two-year period of limitation has expired, for, it would mean that the Tribunal was prevented from achieving the desired effect directly through the Commissioner but it could do so indirectly through the Income-tax Officer. A literal construction placed on subsection (2)(b) would lead to such manifestly absurd and anomalous results, which, we do not think, were intended by the Legislature. These considerations compel us to construe the words of sub-section (2)(b) as being applicable to suo motu orders of the Commissioner in revision and not to orders made by him pursuant to a direction or order passed by the Appellate Tribunal under sub-section (4) or by any other higher authority. Such construction will be in consonance with the principle that all parts of the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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