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2005 (4) TMI 42
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....rtaining the application for revision for making an enquiry. Mr. Khaitan, learned counsel appearing for the petitioner, while assailing the impugned order contends that the impugned order is bad patently as the Commissioner has failed to consider the scope and purview of section 264 of the said Act, which fortunately is much wider than the power vested under section 263. Power of section 263 is exercised in a case where the impugned order sought to be revised is erroneous and prejudicial to the interests of the Revenue. Upon comparative study of both the sections it will appear that the power of section 263 can be exercised suo motu, and to protect the interests of the Revenue if affected or prejudiced by the impugned order, whereas power of section 264 can be exercised amongst others on an application from the assessee or even suo motu. In other words the assessee has no right to apply under section 263 of this Act. He further contends that the Commissioner ought to have enquired into this matter as to whether the petitioner-assessee failed to produce evidence or furnish particulars. The only exception is that in exercise of the power the Commissioner cannot pass any order prej....
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....s extraordinary power should not interfere with the impugned order passed upon discretion. His next contention is that the question of principles of natural justice in this case does not arise. Moreover, he has reminded me of the applicability of the principles of natural justice. He further contends that each and every order is not necessarily required to be passed upon compliance with natural justice. One has to establish affectation of lawful right and that such right is sought to be taken away by the judicial and quasi-judicial authority in exercise of power. Here a report was furnished and copy thereof was not supplied to the petitioner and such non-supply of the report does not take away the petitioner's right of natural justice. In support of his contention he has relied on the following decisions: (1) CIT v. The Tribune Trust [1948] 16 ITR 214 (PC); (2) Jacob v. Additional Deputy Commissioner of Agricultural Income-tax [1986] 158 ITR 596 (Ker) [FB]; (3) Managing Director, ECIL v. B. Karunakar [1994] 84 FJR 210; [1993] 4 SCC 727; (4) State Bank of Patiala v. S. K. Sharma, AIR 1996 SC 1669. His next contention is that the report of dismissal of the SLP is no....
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....ct in which any such order has been passed and 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. (2) The Commissioner shall not of his own motion revise any order under this section if the order has been made more than one year previously. (3) In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier: Provided that the Commissioner may, if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period, admit an application made after the expiry of that period. (4) The Commissioner shall not revise any order under this section in the following cases- (a) where an appeal against the order lies to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals) or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not e....
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....the consistent view that the revisional power conferred on the Commissioner under section 264 is very wide. He has the discretion to grant or refuse relief and the power to pass such order in revision as he may think fit. The discretion, which the Commissioner has to exercise, is undoubtedly to be exercised judicially, not arbitrarily according to his fancy. Therefore, subject to the limitations prescribed in section 264 of the said Act the Commissioner in exercise of his revisional power under the said section may pass such order as he thinks fit which is not prejudicial to the assessee. There is nothing in section 264 of the said Act which places any restriction on the Commissioner's revisional power to give relief to the assessee in a case where the assessee detects mistakes on account of which he was over-assessed after the assessment was completed. It is open to the Commissioner to entertain even a new ground not urged before the lower authorities while exercising revisional powers. The aforesaid judgment of the Kerala High Court has accepted the views on the same point, taken in the previous judgment of the Gujarat High Court rendered in the case of C. Parikh and Co. v. CI....
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...., should have made enquiry considering the documents placed before him by the petitioner. At least this should have been reflected in the impugned order that he had taken note on the date of making application of the revision, of the tax exempting investment. There might be varieties of reasons for not producing evidence at the time of the assessment; this does not mean that the assessee is precluded from producing evidence of contemporaneous nature at a later stage by filing an application for revision. The power under section 264 of the Commissioner in my opinion is to do the justice, to prevent miscarriage of justice being rendered. It appears from the records that the petitioner produced unimpeachable documents showing investment which is otherwise liable to be taken note of for granting exemption and if it were allowed by the Commissioner then the petitioner would not have suffered for over-assessment. The expression "order prejudicial" means the prejudicial effect of an order passed by the revising officer on the merits. In the case reported in CIT v. The Tribune Trust [1948] 16 ITR 214, the Privy Council while dealing with amongst other scope of section 33 of the Indian I....