9911796707
TMI Blog2001 (7) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax Officer. He then contends that section 132(5) empowers such officers who are above Income-tax Officers and that under subsection (11) of section 132 appeal is provided. In the present case, before section 263 was resorted to, an appeal was already preferred. Therefore, until the appeal is decided, section 263 cannot be resorted to. He then contends that section 263 cannot be resorted to during the pendency of a proceeding under section 132, sub-section (11). Therefore, the said notice should be quashed. Learned counsel for the respondents-income-tax authority, on the other hand, contends that the expression used in section 263 is clear and unambiguous. It does not qualify any proceedings. On the other hand, it provides that powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter in this section and in sections 132A and 132B referred to as the assets) is seized under sub-section (1) or sub-section (1A), the Income-tax Officer, after affording a reasonable opportunity to the person concerned of being heard and making such enquiry as may be prescribed, shall, within ninety days of the. seizure, make an order, with the previous approval of the Inspecting Assistant Commissioner, (i) estimating the undisclosed income (including the income from the undisclosed property) in a summary manner to the best of his judgment on the basis of such materials as are available with him; (ii) calculating the amount of tax on the income so estimated in accordance with the provisions of the Indian Income-tax Act, 1922 (11 of 1922), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and (iii) or any part thereof, the Income-tax Officer may, with the previous approval of the Commissioner, release the assets or such part thereof as he may deem fit in the circumstances of the case." Under the said provision the officer authorised under sub-section (1) of section 132 is empowered to undertake exercise of the authority conferred under sub-section (5) which includes assessment or estimate of the income and the tax on such income. Thus while exercising the jurisdiction under sub-section (5) of section 132, the authority mentioned in sub-section (1) of section 132 performs the function of assessment of income and the tax on such income. Therefore, the same is a proceeding of assessment and is definitely a proceeding under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appoint such executive or ministerial staff as may be necessary to assist it in the execution of its functions." The authorities in sub-section (1) include an Income-tax Officer. A reference made to a particular officer is to be treated as ejusdum generis which includes such officers who are empowered to make assessment in respect of the income and tax. Therefore, the application of section 263 cannot be excluded in respect of a person mentioned in section 132 of the said Act. So far as the contention that during the pendency of the proceeding under sub-section (11) of section 132, section 263 cannot be resorted to, the same can be averred from sub-section (11) of section 132 provides as follows: "(11) If any person objects for any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, the High Court or the Supreme Court." The revisional power is in respect of any objection raised under sub-section (11) of section 132 is to be decided by the same authority who is empowered to exercise the power under section 263. Therefore, the petitioner, in reply to his show cause could take this very ground, and may also pray that his objection may be decided together. At the same time, ill order to oppose the said proceeding under section 263 an opportunity is given. Then he can take the ground of pendency of the proceeding tinder sub-section (11) as ground of objection to the proceeding under section 263. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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