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TMI Blog2007 (1) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... peal which arises out of a judgment and order dated December 15, 2003 passed by the High Court of Madhya Pradesh at Jabalpur in ITR No.19/1999. The fact of the matter is not much in dispute. The Respondent is an assessee under the Income -tax Act. It filed its return for the assessment year 1992-93 declaring its income at ₹ 26,66,355. The order of assessment was completed on or about March 10, 1995 under Section 143(3) of the Act opining that the assessable income as against the assessee was ₹ 35,40,414. The Commissioner of Income-tax invoked its jurisdiction under Section 263 of the Act by setting aside the order of assessment excluding certain amounts towards transport receipts to the extent of a sum of ₹ 2762982 and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. An application in the aforementioned premise was filed before the High Court for a direction upon the Tribunal for reference of the following questions to it for its opinion (page 370) : 1.Whether on the facts and in the circumstance of the case, the Hon'ble Income-tax Appellate Tribunal was justified in law in holding that the Commissioner of Income-tax lacked jurisdiction to revise the order of assessment under section 263 of the Income-tax Act ? 2. Whether on the facts and in the circumstances of the case, the Hon'ble Income-tax Appellate Tribunal was Justified in holding that the issue of excess deduction under section 80HH 80 I contained in the order under section 143 (3) was merged with the order under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Act shall apply accordingly. 263. (1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. 8. The scope and ambit of a proceeding for rectification of an order under section 154 and a proceeding for revision under section 263 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the superior tribunal, yet held that no manifest injustice resulted from such refusal. It must be remembered that the order of the Tribunal dated April 22, 1954, was not under challenge before the Judicial Commissioner. That order had become final and binding on the parties, and the respondent could not question it in any way. As a matter of fact the Commissioner of Income-tax had made an application for a reference, which application was subsequently withdrawn. The Judicial Commissioner was not sitting in appeal over the Tribunal and we do not think that, in the circumstances of this case, it was open to him to say that the order of the Tribunal was wrong and, therefore there was no injustice in disregarding that order. As we hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of review. An order of assessment may or may not be rectified. If an order of rectification is passed by the Assessing Authority, the rectified order shall be given effect to. However, only because an order of assessment has undergone rectification at the hands of the Assessing Officer, in our opinion, the same would not mean that revisional authority shall be denuded of exercising its revisional jurisdiction. Such an interpretation, in our opinion, would run counter to the scheme of the Act. 13. The Tribunal relied on Vippy Solvex Products Pvt. Ltd. [1997] 228 ITR 587 (MP). Therein the question was determined in the light of the decision of this court in Smt. S. R. Venkataraman v. Union of India AIR 1979 SC 49. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l have no application. 15. The decision of the Madhya Pradesh High Court in Chunnilal Onkarmal P. Ltd. [1997] 224 ITR 233 is also not apposite. Initiation of a proceeding under Section 263 of the Act cannot be held to have become bad in law only because an order of rectification was passed. No such hard and fast rule can, in our opinion, be laid down. Each case is required to be considered on its own facts. In a given situation, the High Court may be held to be entitled to set aside both orders and remit the matter for consideration of the matter afresh. But in our opinion, it would not be correct to contend that only because a proceeding for rectification was initiated subsequently, the revisional jurisdiction could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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