1982 (8) TMI 71

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..... i K.C. Patel, provided there was no dispute that the Commissioner had kept the issue of investment allowance open for the ITO to decide in accordance with law and not necessarily in accordance with the opinion expressed by the Commissioner in his order. Shri Harne, the departmental representative, stated that it was clear from the reading of paras 4 to 7 that the Commissioner had left the entire issue open to the ITO to be decided in accordance with law and had not fettered him in any manner. 3. We have gone through paras 4 to 7 of the order of the Commissioner and are also of the view that the directions given by the Commissioner to the ITO do not restrict him to act in accordance with the views expressed by the Commissioner in his order .....

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..... eliminary ground, it was submitted that the order for 1978-79 should not be upheld. 5. On behalf of the revenue, Shri Harne submitted that there was no need to issue a notice in writing by the Commissioner in every case and what is required is that the position about the proposed action under section 263 by the Commissioner be communicated to the assessee and he be provided with an opportunity of being heard. He pointed out to order-sheet entry dated 11-3-1981 recorded by the Commissioner wherein he had called the assessee's advocate and communicated to him the fact that as the facts involved for the assessment year 1978-79 were similar, he proposed to revise that assessment also under section 263. The assessee's counsel was asked to make .....

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..... ee in the facts and circumstances of this case. It is not in dispute that the facts involved for the two assessment years are similar and for the first assessment year the Commissioner had issued even a notice in writing in respect of his proposed action under section 263. The initiation of proceedings under section 263 does not depend on the issuing of a notice in writing. It is settled law that the Commissioner acquires the jurisdiction when he considers that any order passed by the ITO is erroneous in so far as it is prejudicial to the interests of revenue. However, the law further provides that no order adverse to the assessee shall be passed without giving the assessee an opportunity of being heard. It is to render effective the right .....

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