Jaganmohan Reddy, J.
1. This Writ petition seeks to have the orders of the Commissioner of Income-tax, Hyderabad, passed in revision under Section 33A of the Income-tax Act, quashed and prays for suitable directions that the amounts of Rs. 8,449/- for 1947-48 and Rs. 15,667/- for 1948-49 be refunded or Otherwise adjusted.
2. The petitioner is the proprietor of Messrs, Rama and Co., a firm of Printers and Publishers having its Head Office at Eluru and branch offices at Guntur, Rajahmundry and Bhimavaram. He was assessed for the year 1947-48 on 20-3-1951 on a taxable income of Rs. 29,061/- and for 1948-49 on 23-11-1951 on a taxable income of Rs. 34,425/-. Against both these assessments he filed appeals before the Appellate Asst. Commissioner, Bezwada and they were disposed of on 26-6-53 and 28-6-1953 respectively. In the appeal pertaining to 1947-48 the total income was reduced by Rs. 8,887/- and with respect to 1948-49 the total income was reduced by Rs. 18,368/- and the tax was recomputed in both the cases and the excess amount was directed to be refunded.
In so far as the assessment for 1949-50 and 1050-51 were concerned, they ultimately resulted in an appeal to the Income-tax Appellate Tribunal, Madras Bench 'A' which was allowed on 14-4-1954. In these appeals the assesses complained that the Income-tax Officer whose assessment orders were upheld by the Appellate Assistant Commissioner had not only taken the turnover of the Head Office, but also added the turnover of the branches to which the Head Office had supplied books and thus swelled up the total turnover 'treating the issue to the branches as if they were sales to the branches. The Appellate Tribunal thought that a proper approach in these assessments was to consider the turnover of, both the Head Office and the branches as one unit and, ignoring the interbranch transactions, to estimate the profits on the outside sales at suitable-differential rates for own publications, and others.
From this aspect it considered the assessments to be somewhat excessive and directed the deletion of the excess amounts over Rupees 8,0007- and 10,000/- for the assessment years 1949-50 and 1950-51 respectively. It may be stated that the petitioner had not filed any appeals against the Appellate Asst. Commissioner's orders with respect to 1947-48 and 1948-49, which, by the time of the Appellate Tribunal's order on 14-4-1954 with respect to 1949-50 and 1950-51, had become time barred Taking advantage of the amendment to Section 33A, ho filed two revisions before the Commissioner of Income-tax, Hyderabad, with respect to each of the assessment years 1947-48 and 1948-49,
3. With respect to the assessment for the year 1947-48, the petitioner stated that he had admitted an income of Rs. 1,887/- from property, Rs. 13,522/- from business of printing and publication of books and sale of books etc., and Rupees 258/- from other sources; but the Income-tax Officer while accepting the income returned under property, assessed the income from business of printing and publication of books and sale of books etc. at Rs. 30,850/- and Rs. 324/- from other sources and in doing so he added two lump sums of Rs. 8,887/- and Rs. 8,449/- as difference in gross profit, estimating the same on sales at 40 per cent in Head Office and at 15 per cent in branches respectively.
The Appellate Assistant Commissioner has, as already stated, reduced that amount by Rupees 8,887/-. In paragraph 6 the petitioner contended that in the matter of working out the gross profits both at the Head Office and branches treating the inter-branch sales as turnover the Income-tax Officer added the difference even though it was represented that the effective sale, in respect of own publications and other books etc. both at the Head Office and branches, may be taken as one unit and the gross profit rates compared. The petitioner also referred to the order of the Appellate Tribunal relating to the assessment years 1949-50 and 1950-51 and prayed that the additions relating to the branch offices be deleted.
A similar plea was raised with respect to 1948-49 for which year a sum of Rs. 2,1287- was returned as income from printing and publication of books and sale of books etc., but the Income-tax Officer rejected it and instead computed an income of Rs. 27,163/- on this count and Rs. 9,324/- from other sources. In computing an income of Rs. 27,163/- the Income-tax Officer added two lump sums of Rs. 14.368/- and Rs. 10,6677- as difference in gross profits estimating the same on sales at 40 per cent in Head Office and at 15 per cent in branches respectively while a sum of Rs. 9,000/-received by the daughter-in-law of the petitioner from her parents through a bank cheque was added to the income-admitted under other sources.
4. The Commissioner of Income-tax dismissed both these petitions by a common order dated 30-1-1955, which is as follows:
'The contention of the assessee is that the additions sustained by the Appellate Assistant Commissioner are not correct and that the book results should be accepted. I have considered the contention in the light of the grounds advanced by the applicant but find no merit in them.
No interference with the assessments is called for and the applications are accordingly rejected.' Learned advocate contends that the Commissioner in exercise of his revisional powers has not considered the main contention raised by him in his revision petition, viz., that the Income-tax Offcer as well as the Appellate Assistant Commissioner had not treated the turnover of the Head Office and the branch offices as one unit, but as different units, nor did he take into consideration that in the other two assessments for the years 1949-50 and 1950-51 the Tribunal had reduced the turnover by treating them as one unit. The advocate for the department on the other hand submits that the provisions of Section 33A are only administrative and it is not necessary for the Commissioner: to give full and sufficient reasons for rejecting the revision petitions.
In the counter filed by the Income-tax Officer, Section I. B. on behalf of the respondent, it was submitted that the petitions are liable to be dismissed for inordinate delay, the Commissioner's order under Section 33A dated 30-1-1955 having been served on the applicant on 9-2-1955 while the writ petition with the High Court's notice was received on 24-7-1956 after a lapse of one year and five months.
I may at once state that the fact that the notice was served on the department late is not relevant, but what docs matter is the date on which the petition was filed. There can be no dispute that the writ petition was filed in the High Court on 5-7-1955 and consequently was within five months from the date of the service of notice. It has been held in the case of Venkata Subba Rao v. D T. S. (Traffic) Vijayawada, 19572 A WR 233; AIR 1958 A P 206 by a Bench of this High Court following the rules of the Supreme Court of England that a period of six months for a writ of certiorari is reasonable within which a writ petition can be filed unless there are special circumstances for the delay, I do not, therefore, consider this contention tenable.
5. Further, it was contended that the Commissioner did not act arbitrarily or capriciously, but acted judicially and slated that he had considered the contentions of the petitioner and found no merit in them. Even on the merits, it was submitted, that the petitioner had not availed himself of a remedy provided under the law, namely an appeal to the Appellate Tribunal and consequently he cannot invoke the jurisdiction on the ground that the Commissioner of Income-tax dismissed the revision petitions under Section 33A holding that there were no valid grounds for interference in revision on merits.
In any case the order of the Appellate Tribunal pertaining to the assessment years 1949-50 and 1950-51 was peculiar to the facts and circumstances of that case and the Appellate Tribunal only held that the net turnover in the entire business should be taken into account, and did not apply any particular rate of gross profit to such turnover and even following this procedure adopted by the Tribunal, the net turnover for 1947-48 assessment worked out to Rupees 1,33,125/- and the gross profit works out to less than 33 per cent, while for 1948-49 assessment the turnover was Rs. 1,37,204/- and the gross profit worked out to less than 33.2 per cent.
Even on this basis the gross profits worked out for 1947-48 and 1948-49 and the rates arrived at were not arbitrary or excessive and the Commissioner, taking into account all these matters, dismissed the revision petitions. It was further contended that Section 33A creates no rights in the assessee to reopen assessments of previous years, that it is within the discretion of the Commissioner to interfere or not under that section and that it is not open to the petitioner by way of awrit to require the Commissioner to pass an order deleting the amounts from the order.
6. I may, however, state that the counter filed by the Personal Assistant to the Commissioner cannot remedy any defect in the Commissioner's order if there is in fact a detect on the face of the order which shows that he has not exercised the discretion vested in him judicially or has acted arbitrarily or capriciously.
7. The short question in this writ petition is whether the order of the Commissioner in revision would show that he has not exercised the jurisdiction vested in him properly and this will depend upon whether the Commissioner under Section 33A is exercising judicial or quasi-judicial functions or only administrative functions. The order o the Commissioner shows on the face of it that the Commissioner has perused the grounds of revision and has refused to exercise the revisional' jurisdiction vested in him and has dismissed the petition.
Learned advocate for the petitioner contends that some reasons should have been shown for rejecting the main contention raised by the applicant in his petition viz., that the turnover of the Head Office and the branches should have been taken as one unit and not as separate units. In my view, there does not appear to be any force in this contention, because where an order is being confirmed, it is unnecessary to repeat the reasoning given by the inferior tribunal.
The remedy is a discretionary one and the Commissioner may refuse to exercise it having regard to the circumstances of each case. Where, however, he is allowing the revision and setting aside the decision of the inferior tribunal, he must give reasons for coming to a different conclusion. This point of view is supported by a decision of a Bench of this High Court in Venkateswara Rao v. State of Madras, (W. P. No. 921 of 1952 decided on 16-11-1955) where Subba Rao, C. J. as he then was observed as follows:
'There is an essential distinction between an order setting aside the order of an inferior Tribunal and confirming the order. Whenever a Tribunal sets aside the order of an inferior Tribunal, it is its duty to consider the validity of the reasons given by the inferior tribunal in coming to a different conclusion. But the same thing cannot be said in the case of an order of affirmance, In a revision, the Superior Tribunal is not bound to interfere with the order of the inferior Tribunal. A party affected by the decision of an inferior Tribunal has no right to ask the Superior Tribunal to interfere. It is only a discretionary remedy and the Superior Tribunal is at liberty to exercise it or not having regard to the circumstances of each case. That apart, when the Superior Tribunal is agreeing with the reasons given by the inferior Tribunal and only confirming its order, it will be an empty formality to ask it to respect the reasons over again for coming to the same conclusion.'
Apart from this general principle, Section 33A; in my view, vests in the Commissioner revisional power to be exercised in his administrative capacity. Before its amendment the corresponding section to Section 33A was Section 33A whereunder the Commissioner may of his own motion call for the record of any proceeding under that Act. may make such enquiry or cause such enquiry to be made and subject to the provisions of the Act pass such order as he thinks fit, provided that he shall not pass any order prejudicial to the assessee without giving him a reasonable opportunity of being heard.
The provisions of Sub-sections (I) and (2) of Section 33A have been now incorporated in Section 33A, Under the old section, therefore, the Commissioner could suo motu send for the record and_ exercise his revisional powers, though in practice he was often moved by the assessee to exercise his powers suo motu. In dealing with this power, their Lordships of the Privy Council in Commr. of Income-tax, West Punjab v. Tribune Trust, Lahore , held that this power intended to provide administrative machinery by which the higher executive officer may review the acts of his subordinate and take the necessary action upon such review. . Lord Simonds, dealing with the assumption that Section 33A creates a right in the assessee, observed as follows:
'......... .In their Lordships' opinion it createsno such right. On behalf of the respondent the well known principle which was discussed in Julius v. Bishop of Oxford 1880 5 AC 214 was invoked and it was urged that the section which opens with the words, 'The Commissioner may of his own motion,' impose upon him a duty which he was bound to perform upon the application of an assessee. It is possible that there might be a context in which- words so inapt for that purpose would create a duty. But in the present case there is no such context. On the contrary Section 33A follows upon a number of sections which determine the rights of the assessee and is itself, as its language clearly indicates, intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action upon such review. It appears that as a matter of convenience a practice has crown up under which the Commissioner has been invited to act 'of his own motion' under the section and where this occurs a certain degree of formality has been adopted. But the language of the section does not support the contention which lies at the root of the third question and is vital to the respondent's case, that it affords a claim to relief. As has been already pointed out, appropriate relief is specifically given by other sections; it is not possible to interpret Section 33A as conferring general relief.'
The incorporation of a new provision giving a tight to the assessee under Section 33A, it is submitted, invests the Commissioner with judicial or quasi-judicial powers. In my view the language of that section does not warrant that assumption. Sub-section (2) of Section 33A is in the following terms:
'(2) The Commissioner may, on application by an assessee for revision of an order under this Act passed by any authority subordinate to the Commissioner, made within one year from the date of the order, call for the record of the proceeding in which such order was passed, and on receipt of the record may make such inquiry or cause such inquiry to be made, and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit:
Provided that the Commissioner shall not revise any order under this Sub-section if--- (a) 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
(h) where an appeal against the order has been made to the Appellate Assistant Commissioner, the appeal is pending before the Appellate Assistant Commissioner; or
(c) the order has been made the subject of an appeal to the Appellate Tribunal; Provided further that an order by the Commissioner declining to interfere shall be deemed note to be an order prejudicial to the assessee.'
The language of Sub-sections (1) and (2) in effect is the same and the words 'the Commissioner may' clearly vest a discretion in him to exercise revisional jurisdiction or not. It is apparent that the Commissioner cannot revise an order to the prejudice of the assessee, nor can the assessee make an application to the Commissioner where an appeal to an appellate authority is pending or the time for the filing of an appeal has not expired or where he has not waived his right of appeal.
The scheme of the Act would show that the rights conferred on, the assessee against an order of assessment are an appeal to the Appellate Assistant Commissioner under Section 30 and then to the Appellate Tribunal against an order of the Appellate Assistant Commissioner under Section 33A. These sections provide the manner in which the appeals-are to be heard and confer upon the appellate authorities full powers not only to pass ciders in favour but also against the assessee. Section 33A also confers a right upon the Commissioner to call for and examine the record of any proceeding and if he finds 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 has to give 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 canceling the assessment and directing a fresh, assessment.
Theses provisions clearly show that a judicial or quasi-judicial power is conferred upon the appellate authorities and the Commissioner, but in so far as Section 33A(1) and (2) are concerned, the Commissioner can pass no order against the assessee, nor dot's it give him an opportunity to be heard. Having regard to the limited scope of Section 33A, the nature of the power under Section 33A cannot be any the different to that in Section 33A, in that, the powers to be exercised by the Commissioner is only in his administrative capacity. It is further argued that under Sub-section (3) of Section 33A the assessee has to pay Rs. 25/- to move the Commissioner and consequently a right has been conferred on him which must be entertained in the exercise of judicial or-quasi-judicial powers.
In my view, this provision does not alter the nature of the power conferred upon the Commissioner and it is only a safeguard against vexatious and frivolous applications. If the Legislature had intended to alter the nature of the powers of the Commissioner by conferring a judicial power on him, then it would have clearly expressed it, but under the provisions as they stand, the calling for the record, making the enquiry and the passing of the order are all discretionary as they are governed by the word 'may'.
If it was a judicial or quasi-judicial power the words 'may enquire' 'may call for' or 'may cause such enquiry' would not have been used, because all of them preclude the assessee from-insisting on an enquiry being made, or causing it to be made or calling for the record and preclude the Commissioner from making an assessment to the prejudice of the assessee as in the case of Section 33A. The procedure envisaged in a judicial or quasi-judicial proceedings is not implicit, in the content of the section. I am, therefore, of the view that the order of the Commissioner, being an administrative one, cannot be interfered with. That apart, the applicant has a right of appeal which he did! not exercise and it is only after the period of limitation expired, he moved the Commissioner to exercise his revisional jurisdiction and must only blame himself for not availing a right given to him by the statute. In any case, the application is untenable as there is nothing to show that the Commissioner has not exercised the discretion vested in him.
8. This application, is, therefore, dismissedwith costs. Advocate's fee Rs. 100/-.