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TMI Blog2016 (9) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the AO passed u/s. 16(3) r.w.s. 17 r.w.s. 25(1) of the Wealth Tax Act, 1957 and not that passed under section 16(3) r.w.s. 17 r.w.s. 25(2) of the Act. (c) Whether, in the facts of the case and in law, the Hon'ble Income Tax Appellate Tribunal is justified in holding that the Commissioner of Wealth Tax has no power to revise u/s. 25(2) of the Act, his own directions given u/s. 25(1) of the Wealth Tax Act, 1957, particularly when the Commissioner of Wealth Tax has revised u/s. 25(2) of the Act, the order of the AO passed in consequence of the setting aside of the original order by the Commissioner of Wealth Tax u/s. 25(1) of the Act [and not u/s 25(2)] and whether on the basis of the facts of the case, it cannot be said that the Commissioner of Wealth Tax has revised his own directions. (d) Whether, in the facts of the case and in law, the action of the Commissioner of Wealth Tax in revising the order of the AO can be held as revising his own order passed u/s. 25(1) of the Wealth Tax Act, 1957 and whether the order passed by the Hon'ble Income Tax Appellate Tribunal is a perverse finding of fact. (e) Whether in the facts of the case and in law, the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of land as adopted while finalizing the income tax assessment for the A.Y. 1989-90. In the earlier instances when the CWT, Jamnagar directed the AO to reassess the wealth of the assessee in accordance with direction of the CWT(A) for A.Y. 1992-93, the AO had assessed the wealth by taking the average rate of realization on auction of land carried out during A.Y. 1989-90 and 1991-92 in the assessee's own case. Thus the basis of initiation of current proceedings u/s. 25(2) of the W.T.Act are different from the basis of initiation of proceedings u/s. 25(2) of the W.T. Act earlier. It cannot therefore be said that there is a charge of opinion by the CWT since the basis for the earlier proceedings and basis for the present proceedings are different and hence not comparable. 2. As per section 50C(1) of the I.T.Act where the consideration received or accruing as result of the transfer by assessee of a capital asset being land or building or both, is less than the value adopted or assessed by the stamp valuation authority for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed shall for the purpose of section 48 being to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AYs. 1999-2000 to 2009-10 are hereby cancelled and the AO is directed to make fresh assessment in the cases of these assessment years in accordance with the above discussions." 4. This order of the Commissioner gave rise to the assessee filing appeals before the Tribunal. The Tribunal, by the impugned judgement, allowed the appeals primarily on the ground that any order that the Commissioner may pass under sub section (2) of Section 25 of the Act cannot have the effect of reversing the order passed under Section 25(1) of the Act. Some of the observations of the Tribunal would suggest that according to the Tribunal, once the order is passed by the Commissioner under Section 25(1) of the Act, his jurisdiction to pass any further order under sub section (2) would virtually come to an end. 5. Relevant portion of Section 25 of the Act reads as under: 25 Powers of Commissioner to revise orders of subordinate authorities. (1) The Commissioner may, either of his own motion or on application made by an assessee in this behalf, call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him, and may make such inquiry, or cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner has the power either of his own motion or on application made by the assessee to call for record of any proceeding of any order passed by the authority subordinate to him and after carrying out such inquiry, as may be necessary, pass such order as he thinks fit, not being an order prejudicial to the assessee. Thus, under sub section (1) of section 25, the Commissioner has revisional powers with limitation that any order that he may pass in exercise of such powers, would not be prejudicial to the assessee. On the other hand, under sub section (2) of Section 25, the Commissioner has the power to call for and examine record of any proceeding and after carrying out such inquiry, has found necessary to pass such order as the circumstance may justify included an order enhancing or modifying the assessment or cancelling it and directing a fresh assessment if he considers that the order passed by the Assessing Officer is erroneous, insofar as it is prejudicial to the interest of the Revenue. Sub section (2) of Section 25 starts with the expression "without prejudice to the provisions contained in sub section (1)". Thus, the sphere of operation of sub section(1) and sub sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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