9911796707
TMI Blog1980 (11) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... 73. In the revision application filed before the Commissioner, the assessee sought to obtain relief to which, according to it, it was entitled by virtue of the provisions of s. 35C of the I.T. Act, 1961. Such a claim had not been put forth before the ITO nor any ground had been taken in this behalf in the appeals. The Commissioner rejected the revision petition on the ground that the assessment order was made subject to an appeal to the Appellate Tribunal and, therefore, he could not interfere by virtue of the provisions under s. 264(4)(c) of the I.T. Act, 1961. In this writ petition it is contended that as the relief sought before the Commissioner had not been the subject-matter of appeal before the Appellate Tribunal, he was not preclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me was as follows: "The Commissioner shall not revise any order under this section in the following cases (a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal to the Appellate Tribunal, the assessee has not waived his right of appeal ; or (b) where the order is pending on an appeal before the Appellate Assistant Commissioner; or (c) where the order has been made the subject of an appeal to the Appellate Tribunal." There was a similar provision under s. 33A(2) of the Indian I.T. Act, 1922. The scope of the latter provision was considered by the High Court of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal did not alter the position that the order of assessment was the subject of the appeal. Even if only a portion of an order of assessment is the subject of the appeal to the Tribunal, still the position is that the subject of the appeal to the Tribunal is the order of assessment. To accept the plea of the learned counsel for the petitioner, that the appeals the petitioner preferred to the Tribunal did not prevent the Commissioner from exercising the revisional jurisdiction vested in him by section 33A(2), we have to construe the word order " in clause (c) of the proviso, as the 'relief claimed', and to read clause (c) as if it ran: 'Provided that the Commissioner shall not revise any order under this sub-section if the relief claimed h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , whether it is restricted by the assessee of his own choice or whether it is restricted by the Tribunal. The relief permissible or granted in the appeal to the Tribunal can have no bearing in determining the scope of the statutory expression 'order' in clause (c) so long as it is the order of assessment that has been appealed against." It is seen from the provisions of the Act that the Commissioner is given certain powers to grant relief under ss. 263 and 264. There are also provisions conferring specific powers on the Commissioner in regard to penalty, etc. The power of the Commissioner should be judged from the specific provisions conferring that power. In that view and having regard to the reasoning in the decision cited above, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
