1953 (3) TMI 44 - HC - Income Tax

Commissioner lacks jurisdiction under Section 33B during pending appeal; emphasis on existing appeal process

Commissioner of Income-tax Versus Amritlal Bhogilal and Co.

The court ruled that the Commissioner lacked jurisdiction to exercise powers under Section 33B of the Income Tax Act while an appeal was pending before ... - Issues:1. Commissioner's power under Section 33B of the Income Tax Act when an appeal is pending before the Appellate Assistant Commissioner.2. Validity of the Commissioner's order under Section 33B setting aside the Income-tax Officer's order while an appeal was pending.3. Legality of the orders passed by the Income-tax Officer without fresh notices as required by Sections 22 and 23 of the Income-tax Act.Analysis:1. The judgment addresses the issue of the Commissioner's authority under Section 33B of the Income Tax Act when an appeal is pending before the Appellate Assistant Commissioner. The case involved assessments made by the Income-tax Officer for the years 1947-48, 1948-49, and 1949-50 on an assessee registered as a firm under Section 26A. The Appellate Assistant Commissioner had reduced the assessments for 1947-48 and 1948-49, with an appeal pending for 1949-50. The Commissioner, through an order under Section 33B, directed the cancellation of the firm's registration and assessment as an unregistered firm for all three years. The court held that once an appeal is pending before the Appellate Assistant Commissioner, the Commissioner should utilize the existing appeal process to address revenue-related concerns rather than invoking Section 33B. The Commissioner's revisional powers under Section 33B should be reserved for exceptional circumstances where no other remedy is available to revise the Income-tax Officer's order. Therefore, the Commissioner had no jurisdiction to exercise powers under Section 33B when an appeal was pending, as there were alternative avenues available to address revenue concerns through the appeal process.2. The judgment also examined the validity of the Commissioner's order under Section 33B, which set aside the Income-tax Officer's order while an appeal was pending before the Appellate Assistant Commissioner. The court ruled that the Commissioner's exercise of powers under Section 33B in such a scenario was not valid. It emphasized that the Commissioner's revisional powers should be exceptional and exercised only when no other remedy is available to revise the Income-tax Officer's order. Since the appeal process provided a legal remedy to address revenue concerns, the Commissioner should have pursued that route instead of invoking Section 33B. Therefore, the order under Section 33B setting aside the Income-tax Officer's order during the pendency of an appeal was deemed invalid.3. Regarding the legality of the orders passed by the Income-tax Officer without issuing fresh notices as required by Sections 22 and 23 of the Income-tax Act, the court deemed it unnecessary to decide this question. The court held that all proceedings initiated by the Income-tax Officer based on the Commissioner's orders under Section 33B were invalid due to the Commissioner's lack of jurisdiction to exercise powers under Section 33B when an appeal was pending. Consequently, the court did not delve into the issue of fresh notices under Sections 22 and 23, as the primary orders were invalidated by the Commissioner's actions under Section 33B.In conclusion, the court ruled against the validity of the Commissioner's exercise of powers under Section 33B while an appeal was pending and highlighted the importance of utilizing existing appeal processes to address revenue concerns before resorting to exceptional revisional powers.