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TMI Blog2011 (8) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... rst respondent failed to afford a personal hearing before passing the order of revised assessment, despite the revision resulting in an abnormal increase of the tax liability of the petitioner, thereby denying him reasonable opportunity. On June 4, 2011, the first respondent issued a notice in form 305A proposing to revise the assessment in exercise of powers under section 32(2) of the 2005 Act. In response thereto, on July 2, 2011, the petitioner submitted its objections and thereat requested for a personal hearing before conclusion of the revisional proceedings. A revised notice of assessment (modifying the proposals for revision initially contained in the revision notice dated June 4, 2011) was issued by the first respondent on July 11, 2011 sensitizing the petitioner to a further tax liability of ₹ 1,19,05,444. In response, the petitioner lodged its objections on July 18, 2011 and reiterated the request for a personal hearing. In this representation, the petitioner also stated that JTC Projects (I) Limited had filed Writ Petition Nos. 15854 and 15894 of 2010 before this court pertaining to the assessment years 2007-08 and 2008-09 questioning disallowance of ITC in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) or (2) shall not be exercised by the authority specified therein, in respect of any issue or question, which is the subject-matter of an appeal before or which was decided on appeal by the Appellate Tribunal under section 33. The further proviso enjoins that this restriction is not applicable in respect of other issues or questions, which are not the subject-matter of an appeal before the Appellate Tribunal. Sub-section (5) reads: It shall be lawful for the Commissioner to defer any proceeding under this section by the reason of the fact that an appeal or other proceeding is pending before the High Court or Supreme Court involving a question of law having a direct bearing on the order or proceeding in question. Sri Moorthy contends strenuously that since the power of revision is conferred and consecrated not only on the Commissioner under subsection (1) of section 32 but on the other specified authorities enumerated in sub-section (2) as well, the discretion conferred under sub-section (5) (to defer any proceedings under section 32 by reason of the fact that an appeal or other proceeding is pending before the High Court or the Supreme Court involving a question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner that is extended in subsection (2) of section 32, whereby a specific legislative authorization, the powers of revision conferred on the Commissioner under sub-section (1), may also be exercised by other officers enumerated. It requires to be noticed that sub-section (2) does not enact that the entirety of the powers of revision under section 32 may also be exercised by an Additional Commissioner, etc. It is only the revisional power referred to in sub-section (1) that may be exercised by the Additional Commissioner and other enumerated officers under sub-section (2). Coming to sub-section (5), the discretion to defer revisional proceedings is clearly conferred on the Commissioner and not on officers specified in sub-section (2). In the context of the different phraseology employed in section 32(1), (2) and (5) there is no warrant for an assumption that the expression Commissioner occurring in sub-section (5) would embrace the other authorities authorized to exercise the powers of revision under sub-section (2); i.e., the discretion to defer revisional proceedings, if conditionalities of subsection (5) are satisfied and the authority is satisfied that a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ah Co. v. Deputy Commissioner (CT), Saroornagar Division, Nampally, Hyderabad [2007] 45 APSTJ 116, while dealing with an exercise of revisional power under section 20 of the APGST Act, 1957 which is in pari materia the contours of the revisional power conferred under section 32 of the 2005 Act, has held that an order enhancing the assessment cannot be passed unless an opportunity is given to the assessee to show-cause against the proposed enhancement and he is given a reasonable opportunity of being heard. Amplifying on this observation, the learned Division Bench ruled: . . . Though the expression 'reasonable opportunity of being heard' has not been defined either under the Act or the Rules, the same deserves to be interpreted in the light of the expansive meaning given by the courts to various facets of the rules of natural justice. In a matter like the present one where huge tax liability has been created against the petitioner by suo motu revision of the assessment order, the request of personal hearing made by the petitioner's representative ought to have been entertained because the same would have enabled him/her to convince respondent No. 1 that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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