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TMI Blog1984 (7) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... Exhibits P-1 and P-2 orders are illegal and violative of natural justice. Before passing Exhibit P-1 assessment order, the objections filed by her were not considered. Before passing Exhibit P-2 order, no notice was served on her and she was not heard. No sufficient opportunity was afforded to the petitioner to produce relevant documents. In this original petition, the petitioner assails Exhibits P-1 and P-2 orders. The petitioner also attacks section 34, 2nd proviso, to the Agricultural Income-tax Act as ultra vires and violative of article 14 of the Constitution of India. It is stated that there is no obligation for the revisional authority to hear the petitioner before passing an order in revision. In the revision, no prejudicial order s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his own motion or on application by an assessee, call for the record of any proceeding under this Act which has been taken by any authority subordinate to him and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit: Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard : Provided further that an order passed declining to interfere shall not be deemed to be an order prejudicial to the assessee. (2) Any order passed under subsection (1) shall be final subject to any reference that may be made to the High Court tinder section 60. " Section 60 (2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Agricultural Income-tax under section 34 of the Act is a revisional power. The extent of the power is also specified therein. Prima facie there are no words Of limitation. But the title or heading to the section is styled as "Revision". This is a key to understand the scope of the power vested in the Commissioner under section 34 of the Act. It is well-settled law that there is difference between an "appeal" and a "revision". An appeal is a re-hearing of the matter by the appellate authority. Generally, the revisional jurisdiction is given to a superior court or authority so that it can satisfy itself whether the order attacked or impugned is according to law. As observed by V. Balakrishna Eradi, J. (as he then was) in delivering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uated to error of law or of fact simpliciter. It refers to the overall decision, which must be according to law which it, would not be, if there is a miscarriage of justice due to a mistake of law." At page 701, their Lordships concurring with the judgment of the Bombay High Court in Bell Co. Ltd. v. Waman Hemraj, AIR 1938 Bom 223, wherein the words "according to law" occurring in section 25 of the Provincial Small Causes Courts Act was construed, detailing the cases wherein interference was justified, held : "........ but instances which readily occur to the mind are cases in which the court which made the order had no jurisdiction, or in which the court has based its decision on evidence which should not have been admitted, or cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of natural justice. The second proviso only provides that if a revision is rejected, it shall not be deemed to be an order prejudicial to the assessee. The said proviso should be read along with section 60(2) of the Act. The effect is only to a limited extent it will not be open to the assessee to invoke section 60(2) of the Act, and to initiate any proceeding for reference to the High Court of any question of law, where the Commissioner merely confirms the orders of the subordinate authority and refuses to interfere in the matter. That is implicit in the context of the revisional jurisdiction. Nothing that is contained in the second proviso to section 34 of the Act abrogates the provision for hearing or reasonable opportunity to be afforde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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