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Ramlal Onkarmal Vs. Commissioner of Income-tax, Assam. - Court Judgment

LegalCrystal Citation
Subject;Direct Taxation
CourtGuwahati High Court
Decided On
Case NumberIncome-tax Reference No. 2 of 1959
AppellantRamlal Onkarmal
RespondentCommissioner of Income-tax, Assam.
Excerpt:
- - that there was no order of re-assessment under the provisions of section 34 and that the order passed by the commissioner was well within two years from the date of the order of assessment. in my opinion, therefore, the contrast between the two sections brings out clearly that the powers under section 33b are not circumscribed except to the extent mentioned in that section itself. although the appellate assistant commissioner in an appeal against an assessment by the assessee can enhance the assessment and, therefore, correct the mistakes made, if any, in the order of assessment by the income-tax officer, the legislature was not content with the power of the appellate authority and intended that the commissioner, by virtue of his being a senior officer of the department, could be..... sinha c.j. - this is a reference under section 66 (1) of the income-tax act by the appellate tribunal in the circumstances following :ramlal onkarmal, powai, who will be hereafter referred to as the assessee, is a hindu undivided family, having shares in the following two unregistered firms :(i) 12 annas share in ramlal onkarmal.(ii) 8 annas share in durgapur tea estate.in the assessment completed on june 21, 1954, under section 23 (3) for the r. n. year 2009, for the assessment year 1953-54, the income-tax officer included the following shares from the aforesaid firms : rs.ramlal onkarmalprofit38,392durgapur tea estateloss32,759in arriving at the assessment, the income-tax officer made a deduction of rs. 32,759 representing loss in the durgapur tea estate and after this deduction.....
Judgment:

SINHA C.J. - This is a reference under section 66 (1) of the Income-tax Act by the Appellate Tribunal in the circumstances following :

Ramlal Onkarmal, Powai, who will be hereafter referred to as the assessee, is a Hindu undivided family, having shares in the following two unregistered firms :

(i) 12 annas share in Ramlal Onkarmal.

(ii) 8 annas share in Durgapur Tea Estate.

In the assessment completed on June 21, 1954, under section 23 (3) for the R. N. Year 2009, for the assessment year 1953-54, the Income-tax Officer included the following shares from the aforesaid firms :

 

Rs.

Ramlal Onkarmal

Profit

38,392

Durgapur Tea Estate

Loss

32,759

In arriving at the assessment, the Income-tax Officer made a deduction of Rs. 32,759 representing loss in the Durgapur Tea Estate and after this deduction was made, the total income calculated was Rs. 18,656 on which the income-tax was levied for the assessment year 1953-54.

The assessee filed an appeal against the assessment to the Appellate Assistant Commissioner on August 28, 1954, which was decided on September 15, 1956. While the above appeal was pending decision, the Commissioner of Income-tax on examination of the record found that the above Income-tax Officers order was prejudicial to revenue and accordingly, after due hearing, he passed his order dated June 4, 1956, that it to say, during the pendency of the appeal and by that order, he directed the Income-tax Officer that the assessment should be enhanced by Rs. 32,759 being the share from the aforesaid unregistered firm, Durgapur Tea Estate, because, in his opinion, such a loss should not have been set off in the assessment under the second proviso to sub-section (1) of section 24. The assessee thereupon filed an appeal to the Appellate Tribunal contending that the Commissioner of Income-tax had no jurisdiction to pass the aforesaid order, inasmuch as at the time of passing the order, an appeal was pending before the Appellate Assistant Commissioner against the assessment itself. Upon these grounds, the following question has been referred to this court :

"Whether the Commissioners order under section 33B is valid ?"

Section 33B was introduced by an amendment in 1948 (Income-tax Business Profits Tax Amendment Act, 1948, Act XLVIII of 1948) and the relevant portions of the section read as follows :

"(1) The Commissioner may call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such enquiry 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.

(2) No order shall be made under sub-section (1) -

(a) to revise an order of reassessment made under the provisions of section 34; or

(b) after the expiry of two years from the date of the order sought to be revised.

(3) Any assessee objecting to an order passed by the Commissioner under sub-section (1) may appeal to the Appellate Tribunal within 60 days of the date on which the order is communicated to him..."

This is the provision under which the Commissioner of Income-tax has passed the order in question. This section requires three conditions to be fulfilled before the Commissioner can have jurisdiction to pass order under this section : (1) that the order passed by the Income-tax Officer is erroneous and is prejudicial to the interests of the revenue; (2) that no order of revision can be passed if there has been an order of re-assessment under the provisions of section 34; and (3) that recourse to the powers under this section cannot be had after the expiry of two years from the date of the order sought to be revised. Of course, when the Commissioner decides to proceed under this section, he has to give an opportunity to the assessee for being heard. Now in this case, all these three conditions are fulfilled, namely, that the Commissioner of Income-tax has held that the order of assessment made by the Income-tax Officer is prejudicial to the interests of the revenue, inasmuch as he had knocked off a sum of Rs. 32,759, which represented the loss of one of the firm of which the assessee had shares, although the firm was an unregistered one; that there was no order of re-assessment under the provisions of section 34 and that the order passed by the Commissioner was well within two years from the date of the order of assessment.

The question, however, which is raised by the learned counsel, Mr. Ghose, appearing on behalf of the assessee, is that when an appeal was pending from the assessment order itself, the Commissioner could not have exercised the powers under section 33B for the reason that under section 31 (3) (a), the Appellate Assistant Commissioner may "confirm, reduce, enhance or annul the assessment", and as provided for by section 31 (3) (h), second proviso, the "Income-tax Officer shall have the right to be heard either in person or by a representative". In other words, it is said that as in an appeal from assessment, the appellate authority has the power to enhance the assessment and the Income-tax Officer has also the right to be heard either in person or by a representative, in case of wrong orders made by the Income-tax Officer, or where the order is prejudicial to the revenue, the appellate authority having powers to enhance, can do so and, therefore, in a case where the assessment order is pending disposal in appeal, this power under section 33B could not be exercised, and it causes great prejudice to the assessee, inasmuch as the view of the appellate authority in deciding the appeal may be coloured by the order passed by the Commissioner under section 33B.

Now, so far as the provisions of section 33B are concerned, which I have already quoted, these could be exercised by the Commissioner on the fulfilment of the three conditions mentioned in the section, and his powers under the section are not hedged in by any other restrictions. If he is exercising the powers under section 33B in respect of an order of assessment made by the Income-tax Officer, he acts within his jurisdiction. Normally, the power of revision is to be exercised after all remedies by way of appeal or otherwise have been exhausted, and in several Acts, where power of revision is given, it is mentioned in clear words that if the order is open to appeal, no revision would lie. In so far as section 33B is concerned, however, there is no such restriction on the exercise of power of revision. In section 33A, which also contains power of revision by the Commissioner, there appears to be a marked contrast between the provisions of that section and section 33B. Whereas under section 33B he can call for and examine the record of any proceeding under the Act to see whether an order passed by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the revenue, under section 33A, he can call for the record of any proceeding under the Act in which an order has been passed by any authority subordinate to him and make such enquiry or cause such inquiry to be made, and, subject to the provisions of the Act, pass an order thereon not being an order prejudicial to the assessee, provided that the Commissioner shall not revise any order under section 33A (1) if (1) where an appeal against an order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal, the time within which such appeal may be made, has not expired; or (2) the order is pending on an appeal before the Appellate Assistant Commissioner or has been made the subject of an appeal to the Appellate Tribunal; or (3) the order has been made more than one year previously; or (4) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal, but has not been made, 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 (5) where an appeal against the order has been made to the Appellate Assistant Commissioner, the appeal is pending before him; or (6) the order has been made the subject of an appeal to the Appellate Tribunal. The restrictions to the exercise of the power of revision mentioned in section 33A are conspicuous by their absence in exercising the power of revision under section 33B except, of course, the limited restrictions to which I have already made reference. In my opinion, therefore, the difference in the provisions of the two sections also makes it abundantly clear that merely because an appeal is pending against the order of the Income-tax Officer, that is no bar to the exercise of power under section 33B by the Commissioner, as it is to the exercise of power under section 33A.

In my opinion, therefore, the contrast between the two sections brings out clearly that the powers under section 33B are not circumscribed except to the extent mentioned in that section itself. There is another point of view from which this point could be considered. Although the Appellate Assistant Commissioner in an appeal against an assessment by the assessee can enhance the assessment and, therefore, correct the mistakes made, if any, in the order of assessment by the Income-tax Officer, the legislature was not content with the power of the appellate authority and intended that the Commissioner, by virtue of his being a senior officer of the department, could be trusted more than the appellate authority with the exercise of power under section 33B and it has actually happened in this very case that although there is no dispute that on merits the order of the Commissioner of Income-tax is a good order, the appellate authority, while dealing with the appeal, did not consider the matter from the point of view considered by the Commissioner and so far as the sum of Rs. 32,759 is concerned, the appellate authority did not consider the assessment order of the Income-tax Officer to be bad on the ground mentioned by the Commissioner. In my opinion, therefore, the order of the Commissioner of Income-tax cannot be taken exception to on the grounds urged.

Mr. Ghose has placed reliance on several cases and I shall deal with them one by one. The first case to which reference is made is the case of Commissioner of Income-tax v. Amritlal Bhogilal and Co. The case which gave rise to the reference before the Bombay High Court was that the Income-tax Officer had made the assessment on the assessee in respect of the assessment years 1947-48, 1948-49 and 1949-50, and the assessment were made under section 23 (3) of the Income-tax Act. The Income-tax Officer had rejected the profits as disclosed by the assessees books of account and had made an estimate under the proviso to section 13. The assessee had applied for the renewal of registration of the firm and he had also passed an order under section 26A granting renewal of registration of the firm, and he had also passed orders under section 23 (6) allocating the shares of the various partners. The assessee went up in appeal before the Appellate Assistant Commissioner and in regard to the first two years of assessment under reference, the Appellate Assistant Commissioner reduced the estimate of profit and the Appellate Assistant Commissioner had not disposed of the appeal in respect of the assessment year 1949-50. At this time, the notice of the Commissioner of Income-tax was attracted to the fact that the firm, which had been granted renewal of registration was not a firm, which could be registered under the Income-tax Act, as one of the partners was a minor. He, therefore, took action under section 33B (1) and issued a notice to the assessee to show cause why assessment made under section 23 (3) and the registration granted under section 26A should not be cancelled. After giving the parties a hearing, the Commissioner of Income-tax passed an order cancelling the orders passed by the Income-tax Officer under section 23 (3) and 26A of the Income-tax Act and directed the Income-tax Officer to refuse to renew registration of the firm for the three respective years. In regard to the orders passed under sections 23 (3) and 55, the Income-tax Officer was directed to make a fresh assessment according to law for each of these years. As a result of the above order of the Commissioner of Income-tax, the Income-tax Officer passed fresh orders without giving the assessee any notice or hearing as required by the Income-tax Act, when making the assessment under section 23 (3) of the Act. On appeal to the Income-tax Appellate Tribunal, it was held that the Commissioner of Income-tax, acting under section 33B (1), could not set aside an order passed by the Appellate Assistant Commissioner and it also held that the order passed by the Commissioner under section 33B (1) was bad in law, as it directed the Income-tax Officer to pass an order in a particular manner. The Tribunal passed certain other orders, which are not necessary to mention here. Thereafter, an application was made before the Tribunal to refer the case to the High Court and the Tribunal referred the following amongst other questions, namely that :

"(1) Whether on the facts and circumstances of the case the Commissioner of Income-tax acting under section 33B (1) can set aside orders passed by the Appellate Assistant Commissioner for the assessment years 1947-48 and 1948-49 ?"

The judgment starts by stating that this reference substantially raises the same question that was raised in the last reference, namely I. T. R. No. 29 of 1952, since reported as Commissioner of Income-tax v. Tejaji Farasram Kharawala, the power of the Commissioner to pass orders under section 33B of the Act. In that judgment, their Lordships had to deal with the position where the Commissioner exercise his power after the Appellate Assistant Commissioner had made his order. In the present case, which related to the year 1949-50, the question arose, which was left open in the previous reference, whether the Commissioner of Income-tax had power to pass the order under section 33B, when an appeal had been preferred by the assessee and was pending before the Appellate Assistant Commissioner and after considering the matter, their Lordships answered question No. 1 in the negative. Their Lordships made the following observations :

"Now, in our opinion, when one analyses section 33B a little more closely, it is apparent that the Legislature never intended to give the power to the Commissioner to revise an order of the Income-tax Officer when the assessee had appealed from that order. As pointed out in the last reference, the object of enacting section 33B was to confer a power upon the Commissioner in the interest of revenue to revise orders of the Income-tax Officer which could not be revised under any circumstances if the assessee did not appeal from those orders. However erroneous the order of the Income-tax Officer may be, however prejudicial to the revenue, the assessee by refusing to exercise his right of appeal could make that order conclusive. In order to fill up this obvious lacuna, the Legislature enacted section 33B. But once the assessee has appealed, there is no difficulty whatsoever in the way of the department in agitating any question before the "Appellate Assistant Commissioner which in its opinion should be agitated and decided in the interest of public revenue. Now, it is clear that when an appeal is pending before the Appellate Assistant Commissioner, the Income-tax Officer had the right to be heard either in person or by a representative, and the very point which the Commissioner has taken and on which he has given his decision under section 33B could have been urged under the directions of the Commissioner before the Appellate Assistant Commissioner. It is only when no remedy is open to the Commissioner to revise the order of the Income-tax Officer that his jurisdiction under section 33B arises. But when a legal remedy is given to him to get the orders of the Income-tax Officer revised, he cannot requisition to his aid the power conferred upon him under section 33B. Once the appeal with regard to the year 1949-50 was pending before the Appellate Assistant Commissioner, the Commissioner was given the full right to get the order of the Income-tax Officer revised in any manner he thought necessary in the interest of public revenue...... In our opinion, the revisional powers are exceptional powers to be exercised at exceptional time for exceptional reasons, and the exceptional reason for which the powers can be and should be exercised is when the Commissioner feels that the public revenue is likely to suffer and that no remedy is open to him to get the order of the Income-tax Officer raised. As he had a clear obvious remedy in the appeal which was pending before the Appellate Assistant Commissioner, in our opinion, he had no jurisdiction to exercise his powers under section 33B. In view of this decision it is unnecessary to decide the other questions raised by the Tribunal."

For the reasons given with the greatest respect to the learned Chief Justice of the Bombay High Court who gave this judgment I am unable to agree. As I have endeavoured to show by a contrast between the provisions of section 33A and section 33B of the Act, the powers under section 33B could be exercised even where an appeal is pending from the order of the Income-tax Officer and the powers given under section 33B could be exercised in the conditions mentioned in that section being fulfilled an it is not permissible for the court to introduce into the section other conditions like those, which are mentioned in section 33A. This case was referred to in a Patna case in Smt. Durgabati and Smt. Narmadabala Gupta v. Commissioner of Income-tax. In that case, where was a difference of opinion between Ramaswami and Misra JJ. and ultimately, the matter was referred to a third judge, Mr. Justice S. K. Das, as he then was, and he took the view, which had been taken by Mr. Justice Misra. The facts of that case were almost similar to the Bombay case just referred to. In that case, for the assessment years, 1947-48, 1948-49 and 1949-50, the Income-tax Officer had renewed registration of the firm and on that basis made assessment of the income of the partnership firm under section 23 (5) of the Act. An appeal was preferred by the assessee to the Appellate Assistant Commissioner against the quantum of the assessment. The appeal was decided by the Appellate Assistant Commissioner on 2nd of August, 1950, and the assessments were either modified or affirmed. Thereafter, the Commissioner of Income-tax, exercising his powers under section 33B of the Act, called for the records of the assessment and after giving notice to the assessee cancelled the registration of the firm made by the Income-tax Officer. The Commissioner of Income-tax held that there was no firm in the eye of law, which could be registered, and he directed the Income-tax Officer to determine the tax payable by the firm on the basis that no registration had been granted to the firm. The assessee preferred an appeal to the Appellate Tribunal against the order of the Commissioner of Income-tax. The Tribunal dismissed the appeal and affirmed the order of the Commissioner of Income-tax and at the instance of the assessee, the Tribunal submitted certain questions of law for the opinion of the High Court and of which only two questions appear to be relevant here and which I quote :

"(1) Whether the Commissioner of Income-tax could revise under section 33B the order passed by the Income-tax Officer on 24th September, 1949, in respect of the assessment year 1947-48 ...

(4) Whether in the facts and circumstances of the case the orders passed by the Commissioner of Income-tax cancelling the orders of the Income-tax Officer granting registration of the firm and directing the Income-tax Officer to determine the tax payable of the firm, were valid in law ?"

Mr. Justice Ramaswami, as he then was, observed as follows :

"The jurisdiction conferred by this section upon the Commissioner is very side and there are only three restrictions imposed. The Commissioner cannot, in the first place, revise an order of re-assessment under section 34; in the second place, he cannot revise the order of an Income-tax Officer after the expiry of two years from the date of the order; and, in the third place, the order to be revised by the Commissioner must be the order of the Income-tax Officer and of no one else. Subject to these restrictions and also to the right of the assessee to appeal to the Appellate Tribunal, the Commissioner has been granted wide jurisdiction to revise the order of the Income-tax Officer is so far as he considers that it is prejudicial to the interests of the revenue...... The restrictions imposed upon the jurisdiction of the Commissioner are the three restrictions to which I have already referred, and there is no other restriction imposed upon the authority of the Commissioner to revise the order of the Income-tax Officer. I hold that in the circumstances of the present case, the Commissioner of Income-tax had jurisdiction to cancel the order of the Income-tax Officer to determine the tax payable by the firm on the basis that no registration had been granted and on the total income already determined."

In regard to the case to which reference has been already made by me, namely, the Bombay case of Commissioner of Income-tax v. Amritlal Bhogilal & Co. his Lordships observed as follows :

"I have great respect for the opinion of Chagla, C.J., but I regret that I differ from the view expressed in this passage. As a matter of construction, there is nothing in the language of section 33B or in the context in which it is placed to suggest that the power of revision given to the Commissioner cannot be exercised when an appeal is pending against the order of an Income-tax Officer. I think that the meaning of section 33B must be gathered by examining the language of the section and not by a priori consideration of what the Legislature possibly intended. It may be right to say that the Commissioner should not pursue two concurrent remedies at the same time for the result may be anomalous. But how does it necessarily follow from this that the concurrent remedies do not exist ?"

The Bombay case went up in appeal to the Supreme Court and is reported as Commissioner of Income-tax v. Amritlal Bhogilal & Co., and the view taken by the Bombay High Court was not approved. Even in regard to the assessments of the years 1947-48 and 1948-49 in which the appellate authority had passed orders and the appeal had been disposed of, their Lordships held that the High Court was in error in taking the view that the Commissioner had no authority to set aside the registration order passed by the Income-tax Officer granting registration to the respondent for the years 1947-48 and 1948-49 and in regard to the subsequent year, namely 1949-50, their Lordships observed as follows :

"The appeal preferred by the respondent against the Income-tax Officers assessment order in respect of this year (1949-50) was pending at the material time before the Appellate Assistant Commissioner; and so no question of merger arose in respect of the order granting renewal of registration for this period. There can be no doubt that even on the theory of merger the pendency of an appeal may put the order under appeal in jeopardy but until the appeal is finally disposed of the said order subsists and is effective in law. It cannot be urged that the mere pendency of an appeal has the effect of suspending the operation of the order appeal. The High Court, however, appears to have taken the view that the revisional power is an extraordinary power and can be exercised only for unusual and extraordinary reasons. It was also assumed by the High Court, that, in the pending appeal, the department would have an alternative remedy because, according to the High Court, then department could have challenged the validity or the propriety of the respondents registration and could have asked the Appellate Assistant Commissioner to cancel it. As we have already pointed out, the department could not challenge the validity of the registration order in the assessees appeal before the appellate authority and so the argument that the department had an alternative remedy is not correct. It is clear from the judgment of the High Court that it is the assumption that the department had an alternative remedy which weighed with the learned judges in reaching their final conclusion. Then the argument that the extraordinary revisional power must be exercised only for extraordinary reasons is really not very material. Whether or not the revisional power can be exercised in a given case must be determined solely by reference to the terms of section 33B itself. Courts would not be justified in imposing additional limitations on the exercise of the said power on hypothetical considerations of policy or the extraordinary nature of the power. We must, therefore, hold that the High Court was also in error in holding that the Commissioner was not authorised in cancelling the order of the respondents registration for the year 1949-50."

The important words have been underlined by me. It is thus clear on a review of all these authorities that the view, which I have ventured to take, is supported by the decision of the Supreme Court in the above case, which in effect upheld the view taken by Mr. Justice Ramaswamy, as he then was, in the Patna case and set aside the view taken by Chagla C.J., in the Bombay case.

In my judgment, therefore, the question referred to by the Tribunal must be answered in the affirmative. The respondent is entitled to his cost, which I assess at Rs. 100.

DEKA J. - This is a reference under section 66 (1) of the Income-tax Act and the point referred to us for decision is whether in the circumstances of the case the Commissioner of Income-taxs order dated 4th June, 1956, purporting to be one under section 33B of the Income-tax Act was valid in the eye of law.

I have had the chance of reading the judgment prepared by my Lord the Chief Justice - wherein facts have been dealt with in detail and I therefore need not re-state them.

The contention raised by the learned advocate for the assessee is that since the order of the Income-tax Officer was under appeal to the Appellate Assistant Commissioner prior to the issue of the notice under section 33B of the Act, the Commissioner had no jurisdiction to exercise his powers of revision under section 33B. In support of this contention Mr. Ghose relied on two of the decisions of the Bombay High Court reported in Commissioner of Income-tax v. Tejaji Farasram Kharawala and Commissioner of Income-tax v. Amritlal Bhogilal and Co. He also drew our attention to a decision of the Patna High Court reported in Durgabati and Narmadabala Gupta v. Commissioner of Income-tax. We can easily distinguish the two judgments -the one reported in Commissioner of Income-tax v. Tejaji Farasram Kharawala and the Patna case reported in Durgabati and Narmadabala Gupta v. Commissioner of Income-tax both of which referred to the exercise of the power under section 33B of the Income-tax Act in regard to cases where the Assistant Commissioner had already exercised his appellate powers as provided under section 31 of the Income-tax Act and the order of the Income-tax Officer regarding assessment had merged in the order of the Assistant Commissioner and it had no independent existence. In this case we are required only to decide whether the power under section 33B could be exercised in respect of an order of the Income-tax Officer which was under appeal to the Assistant Commissioner but the appeal had not been disposed of by him. The reason for my distinguishing the other two cases as mentioned above is that it has been held in the case of Tejaji and in the case of Durgabati by majority of judges that the order of the Income-tax Officer had merged in the appellate order passed by the Assistant Commissioner in appeal. The only remedy provided against the order of the Assistant Commissioner is given in section 33 (2) which says that the Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under section 31, direct the Income-tax Officer to appeal to the Appellate Tribunal against such order. The view held by the authorities concerned is that the order of the Income-tax Officer merges in the order of the Appellate Commissioner and it has no separate existence for the purpose of interference under section 33B in exercise of the power of revision. This power of an appeal to the Tribunal does not exist in regard to cases where the order of the Income-tax Officer does not merge in the appellate order. The only decision that favours the assessee is the case reported in Commissioner of Income-tax v. Amritlal Bhogilal and Co. There the identical point was specifically raised and answered by the learned judges in favour of the assessee. The reason for holding that view was that once the assessee had appealed against the assessment, there was no difficulty whatsoever in the way of the department in agitating any question before the Appellate Assistant Commissioner which in its opinion should be agitated and decided in the interest of public revenue. Their Lordships further held that it is only when no remedy is open to the Commissioner to revise the order of the Income-tax Officer, that his jurisdiction under section 33B arises, but when a legal remedy is given to him to get the order of the Income-tax Officer revised, he cannot requisition to his aid the power conferred upon him under section 33B. Their Lordships circumscribed the jurisdiction under section 33B in the following words :

"In our opinion, the revisional powers are exceptional powers to be exercised at exceptional time for exceptional reasons, and the exceptional reason for which the powers can be and should be exercised is when the Commissioner feels that the public revenue is likely to suffer and that no remedy is open to him to get the order of the Income-tax Officer revised. As he had a clear obvious remedy in the appeal which was pending before the Appellate Assistant Commissioner, in our opinion, he had no jurisdiction to exercise his powers under section 33B."

This view, however, was not accepted by the Supreme Court in the appeal which was preferred against this decision and the judgment was set aside. Their Lordships of the Supreme Court in Commissioner of Income-tax v. Amritlal Bhogilal & Co. after discussing the case held as follows :

"Then the argument that the extraordinary revisional powers must be exercised only for extraordinary reason is really not very material. Whether or not the revisional power can be exercised in a given case must be determined solely by reference to the terms of section 33B itself. Courts would not be justified in imposing additional limitations on the exercise of the said power on hypothetical considerations of policy or the extraordinary nature of the power. We must, therefore, hold that the High Court was also in error in holding that the Commissioner was not authorised in cancelling the order of the respondents registration for the year 1949-50. The result is that the view taken by the High Court must be reversed and the first question framed by the Tribunal as well as the additional question framed by the High Court must be answered in favour of the appellant."

The point for decision by the High Court was in identical terms as in this case as I have already indicated. The wordings of section 33B of the Income-tax Act make it quite that the Commissioners power of examining the validity of the order of the Income-tax Officer is confined only by three restrictions. The Commissioner cannot in the first place revise an order of reassessment under section 34; secondly he cannot revise the order of the Income-tax Officer after expiry of two years from the date of the order; and thirdly the order to be revised by the Commissioner must be the order of the Income-tax Officer and of no one else. Here these three conditions are satisfied. Mr. Ghose has in his argument adopted the reasonings given by the High Court in Amritlal Bhogilals case to the effect that if the department could raise the same objection in the appellate court, namely, before the Assistant Commissioner, the Commissioner had no power under section 33B to take out the case from his jurisdiction and try it himself. We find no substance in this contention. We must interpret the statute as it stands as observed by the Supreme Court and there is no restriction imposed on the power of the Income-tax Commissioner under section 33B except the ones I have already referred to. In section 33A of the Income-tax Act which as well deals with the power of revision exercisable by the Commissioner, it is provided that the Commissioner cannot exercise this power of revision if - (a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal, the time within which such appeal may be made has not expired, or (b) the order is pending on an appeal before the Appellate Assistant Commissioner or has been made the subject of an appeal to the Appellate Tribunal. No such restriction, however, has been placed under section 33B and therefore we will not be justified in holding that similar restrictions will apply automatically or by implication in case of exercise of the power under section 33B which the Act itself does not prescribe.

Mr. Ghose has made strenuous efforts to impress on us that the Commissioner can exercise this power under section 33B only if the self same point could not have been raised in the appeal pending before the Appellate Assistant Commissioner. In my opinion there is no scope for any such interpretation in the absence of anything to that effect in the statutory provision itself. That point might have application in a case where the Assistant Commissioner has already disposed of the appeal from the assessment made by the Income-tax Officer, as has been held in the Supreme Courts decision cited above-but it has no application to a case where the appeal is pending before the Assistant Commissioner and it had not been disposed of by him.

In these circumstances I find that there was no restriction in this case on the Commissioner exercising the powers under section 33B of the Income-tax Act and I agree with the Honable Chief Justice that the point under reference should be answered in favour of the department.

Reference answered in the affirmative.


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