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TMI Blog1992 (1) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... n Laws (Amendment and Miscellaneous Provisions) Act, 1986, and Circular No. 469 dated September 23, 1986 of the Central Board of Direct Taxes. No action has been taken by the second respondent and aggrieved by his order, the petitioner filed a revision before the first respondent under section 264 of the Act. The revision has been dismissed by the impugned order dated January 9, 1990, under section 264 of the Act. The petitioner alleges in the affidavit that he is entitled to the benefit of Circular No. 469 dated September 23, 1986 , according to which, the amended provisions relating to furnishing of returns showing loss came into force and would apply to the assessment year 1987-88 and subsequent years. Therefore, the action of the second respondent in lodging the return of loss for the assessment year 1986-87, invoking section 139(10) of the Act is contrary to law and to the instructions of the Central Board of Direct Taxes. It is further alleged that the return is a valid and proper one under section 139(3) as it stood prior to the amendment by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986. As the petitioner has filed the return on October 31, 1986, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai Jethabhai [1983] 142 ITR 84 (Guj). Per contra, Mr. N. V. Balasubramaniam, learned counsel for the respondents refers to section 139 as it stood in 1962 and then to the amendment made by the Taxation Laws (Amendment) Act, 1970, by which sub-section (3) of section 139 has been amended. He points out that only under this sub-section, the Income-tax Officer has been given power to allow such further time for filing return. Sub-section (10) of section 139 came into effect from April 1, 1986, and, according to learned counsel, this sub-section is enacted with a non-obstante clause. He referred to the decisions in Keshavji Ravji and Co. v. CIT [1990] 183 ITR 1 (SC) and A. L. A. Firm v. CIT [1976] 102 ITR 622 (Mad), for the proposition that the circulars issued by the Board cannot override the provisions of the Act and submitted that the orders of the respondents are quite legal and valid. He also pointed out that extension of time cannot be deemed to have been granted as contended by the petitioner and placed reliance on a Division Bench decision of the Andhra Pradesh High Court in T. Venkata Krishnaiah and Co. v. CIT [1974] 93 ITR 297. After giving careful consideration to the arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and that a public duty is imposed on the revisional authority not only to entertain such application but to deal with the same in accordance with law after giving the aggrieved party a reasonable opportunity of being heard, as the discretion vested in him is a judicial discretion and has to be exercised judiciously. The question is whether the same principle would apply when construing section 264 of the Income-tax Act. Learned counsel for the respondents relies on a decision of the Division Bench of the Allahabad High Court in Babu Lal Kedia v. ITO [1973] 92 ITR 542, which construed section 33A(2) of the Indian Income-tax Act, 1922, and held that the Commissioner of Income-tax is not bound to give an oral hearing to the petitioner, particularly when the Commissioner takes no material into consideration other than those furnished in the revision petition. With great respect to the learned judges of the Allahabad High Court, I am not able to agree with the proposition laid down therein. On the facts of the instant case, the Board's Instruction No. 1744, dated January 21, 1987, is a new material which is not known to the petitioner. In Neelima Misra v. Harinder Kaur Paintal (D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trative Law by H. W. R. Wade, 6th Edn., pp. 46-47) 22. An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin maxim audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence in support thereof and must be given fair opportunity to meet the case before an adverse decision is taken. Ridge v. Baldwin [1963] 2 All ER 66 : State of Orissa v. Dr. Binapani Dei [1967] 2 SCR 625 ; AIR 1967 SC 1269. The shift now is to a broader notion of 'fairness' or 'fair procedure' in the administrative action. The administrative officers are concerned, the duty is not so much to act judicially as to act fairly ( Keshav Mills Co. Ltd. v. Union of India [1973] 3 SCR 22 at p. 30 ; AIR 1973 SC 389 at pp. 393-394; Mohinder Singh Gill v. Chief Election Commissioner [1978] 1 SCC 405 at p. 434, AIR 1978 SC 851 at pages 871-872 ; Swadeshi Cotton Mills v. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X
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