9911796707
TMI Blog1994 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ited, Coimbatore, a company registered under the Companies Act, 1956, for the manufacture of various kinds of textile machinery. The agreement concerned both the provision of technical assistance and also the service and training of technicians and specification of the terms of the collaboration agreement regarding consideration. The nature of services to be rendered by the foreign company for which royalty was paid was also specified in clause 4 of the said financial agreement. Later, another agreement was also said to have been entered into for the purpose of manufacturing carding machines between the petitioner and Lakshmi Machine Works, under which also certain payments were to be made by the Indian company to the petitioner-company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Tribunal, before whom the matter was ultimately taken, appears to have held that only one-third of the amount payable as royalty in the first agreement was taxable and two-thirds thereof cannot be subjected to tax. In the light of the above circumstances, according to the petitioner, since the issue was earlier not agitated before the appellate authority in respect of the assessment year 1975-76, the petitioner filed a revision petition under section 264 of the Income-tax Act, 1961, to the Commissioner of Income-tax, Coimbatore, the first respondent herein, on May 7, 1979, and pointed out that the petitioner had not filed any appeal pertaining to the issue under consideration. The position about the other orders pertaining to the subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consideration of the revision filed by the petitioner on the merits and the granting of relief in accordance with law, in the light of the circular order issued by the Board clarifying the position, according to which the jurisdiction of the Commissioner to entertain a revision petition from an assessee against an order should be considered to be barred only if an appeal against that order has been preferred by the assessee before the Tribunal and not where such an appeal has been preferred by the Department. Mr. Balasubramaniam, learned counsel appearing for the respondent, would contend that the fact that the order under challenge before the first respondent in the form of a revision has been made the subject of an appeal to the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if an appeal has been preferred against that order to the Appellate Tribunal and the bar against revision remains unaffected by the scope of the appeal preferred to the Tribunal, whether it is restricted by the assessee of his own choice or whether it is restricted by the Tribunal. That the relief claimed in the application for revision was not the subject-matter of the appeal to the Tribunal does not alter the position that the order of assessment was the subject of the appeal. Their Lordships further held that the word "order" in clause (c) of the proviso to section 33A(2) referred to the order appealed against and not to the relief claimed in the appeal. That apart, it is by now well-settled that the "subject of an appeal" means the subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administrative authority can hardly provide a safeguard or formula for the construction of a statutory provision which contains necessarily, in my view, a prohibition or restriction on the powers of the statutory revisional authority from entertaining a revision under certain stated circumstances. The principles referred to above would go to show that it matters little as to who approached the Tribunal and the fact remains that under the statute the fact that the order sought to be revised has been made the subject of an appeal to the Commissioner of Appeals or to the Tribunal would disentitle the Commissioner to entertain the revision for disposal on the merits. The question which looms large for consideration in this writ petition would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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