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TMI Blog1992 (2) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of immovable property 'Lal Palace'? (2) Whether the Tribunal was right in law, after allowing the assessee's appeal, in restoring the matter to the file of the Commissioner to give notice to the assessee and pass fresh orders instead of quashing the Commissioner's order as being null and void, illegal and without jurisdiction? " This reference arises out of the assessee's wealth-tax assessment for the assessment years 1972-73 to 1975-76. The Wealth-tax Officer, while making wealth-tax assessment for the years under reference, included the value of immovable property known as "Lal Bungalow" in the net wealth of the assessee. We do not consider it necessary to set out the details of the other properties of the assessee, the value wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the report of the approved valuer appears to be on the lower side. There is underassessment of wealth on this account for the assessment years 1976-77 to 1979-80. " The Commissioner, exercising his powers under section 25(2) of the Act, passed an order dated January 24, 1981, holding that so far as the immovable property known as Lal Bungalow was concerned, the report given by the authorised valuer did not represent the correct value of the property. It was observed that the sale of the said immovable property effected in the year 1976-77 indicated that the value of half the property as on March 31, 1976, was as high as the value of the entire property shown by the assessee in the immediately preceding year. According to the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having been given notice, the action of the Commissioner for the assessment years under reference would be a nullity. The Tribunal held that the objection raised by the assessee was factually justified. It was, however, urged on behalf of the Revenue that the assessee was given oral notice by the Commissioner as stated in his letter. The Tribunal was of the view that there was no reason to doubt the statement made by the Commissioner but it was not necessary to enter into that controversy. The Tribunal, relying on the decision of this court in CIT v. Sumantbhai C.Munshaw [1981] 128 ITR 142, held that lack of notice would not make the order of the Commissioner a nullity because it could be waived. The Tribunal, therefore, restored the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It is alleged on behalf of the assessee that since the Commissioner had not stated in the notice given by him to the assessee that the valuation of the immovable property known as " Lal Bungalow " accepted by the Wealth-tax Officer in his assessment orders for the assessment years under reference was erroneous and prejudicial to the interests of the Revenue he could not have given a direction to the wealth -tax officer to refer under reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed in that section is a condition precedent. But no such notice is contemplated by section 33B. The jurisdiction of the Commissioner to proceed under section 33B is not dependent on the fulfilment of any condition precedent. All that he is required to do before reaching his decision and not before commencing the enquiry, is that he must give the assessee an opportunity of being heard and make or cause to be made such enquiry as he deems necessary. Those requirements have nothing to do with the jurisdiction of the Commissioner. They pertain to the region of natural justice. Breach of the principles of natural justice may affect the legality of the order made but that does not affect the jurisdiction of the Commissioner." In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g it to the assessee what case it had to meet and by giving due opportunity for explaining the same and the Tribunal, therefore, vacated the order of the Commissioner and remanded the case to him with the direction to dispose of it afresh after giving due opportunity to the assessee. On a reference being made, the High Court held that the Tribunal did not act properly in directing the Commissioner to dispose of the case afresh. On appeal, the Supreme Court held that the order of the Tribunal was proper. It is thus clear that, when the order of the Commissioner under section 263(1) of the Income-tax Act is set aside by the Tribunal on the ground that there was no adequate opportunity given to the assessee, the Tribunal has jurisdiction to re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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