Coimbatore Cotton Mills Ltd. vs Commissioner of Income Tax and another

Somasundaram, J.—The petitioner was a public limited company carrying on business in the manufacture and sale of cloth. For the

assessment year 1975-76 relevant to the accounting year ending on December 31, 1974, the petitioner''s assessment to Income Tax was

completed by the second respondent by his order dated March 20, 1978. Against the said order dated March 20, 1978, the petitioner filed an

appeal before the Commissioner of Income Tax (Appeals) disputing only the addition, which related to a sum of Rs. 3,73,541 being the payments

on account of certain non-compliance with cloth control obligations. The Commissioner of Income Tax (Appeals) accepted the contention of the

petitioner and by his order dated October 28, 1978, allowed the appeal. In the assessment order, two other issues were disallowed by the officer,

viz., (1) extra shift allowance in respect of electrical machine, and (2) incremental liability on account of gratuity claim of Rs. 6,20,032 for the year

in question. The Income Tax Officer had also charged interest u/s 215 of the Income Tax Act, 1961 (hereinafter referred to as ""the Act"") in a sum

of Rs. 2,12,625. Against the charging of interest u/s of the Act in a sum of Rs. 2,12,625, the petitioner filed a revision petition to the first

respondent herein on March 31, 1978. Consequent on the order of the Commissioner of Income Tax (Appeals) dated October 28, 1978, deleting

the addition of Rs. 3,73,541, interest u/s 215 of the Act was also correspondingly reduced to Rs. 1,37,200 and the petitioner modified the revision

petition by claiming relief only in respect of a sum of Rs. 1,37,200.

Again, the petitioner filed another revision petition dated January 9, 1979, before the Commissioner of Income Tax, the first respondent herein

claiming (a) grant of depreciation at 20 per cent instead of 10 per cent on electrical machinery; and (b) deduction of a sum of Rs. 6,20,032 being

the amount of incremental liability towards gratuity for the year ending with December 31, 1974. The first respondent by his order C. No.

1411/(252) of 1978-79, dated June 19, 1982, rejected the petition on the ground that the petition was not maintainable in view of section 264(4)

(c) of the Act which prohibited revision u/s 264 of the Act where the order has been made the subject-matter of an appeal before the

Commissioner of Income Tax (Appeals) and in the instant case, the orders of assessment for the assessment year 1975-76 had been made the

subject-matter of an appeal before the Commissioner of Income Tax (Appeals).

As against the said order of the first respondent dated June 19, 1982, the petitioner has field the present writ petition for the issue of a writ of

certiorarified mandamus to quash the order of the first respondent in C. No. 1411/(252) of 1978-79 and C. No. 1411/(235) of 1981-82 dated

June 19, 1982, and to direct the first respondent to consider the petition dated January 9, 1979, and dispose of the same on merits.

Mr. Janarthana Raja, learned counsel for the petitioner, submitted that the first respondent is not correct in his view that the revision petition is

not maintainable by reason of section 264(4)(c) of the Act and that the first respondent overlooked the position that any point which had not been

agitated in appeal field before the Commissioner of Income Tax (Appeals) should be considered a not having been appealed against and,

therefore, the jurisdiction of the Commissioner for suo motu revision or for revision u/s 264 of the Act will be available in respect of that item.

Learned counsel for the petitioner further contended that inasmuch as the issue regarding the grant of additional depreciation on electrical

machinery as well as the deduction of incremental gratuity amount had not been raised or considered in the appeal before the Commissioner of

Income Tax (Appeals), no question of the said part of the order, against which the revision has been filed being made the subject-matter of the

appeal would arise and, consequently, the first respondent is not justified din his view that the revision petition was not maintainable in view of

section 264(4)(c) of the Act.

However, I am unable to accept the above contention of learned counsel for the petitioner. Section 264(4) of the Act reads thus :

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 expired or, in the case of an appeal to the Commissioner

(Appeals) or to the Appellate Tribunal, the assessee has not waived has right of appeal; or

(b) where the order is pending on an appeal before the Deputy Commissioner (Appeals); or

(c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal.

The provisions of clause (c) of sub-section (4) of section 264 of the Act provides that the Commissioner of Income Tax exercising the revisional

powers u/s 264 of the Act cannot revise any order under the said section where the very same order has been made the subject-matter of an

appeal to the Commissioner of Income Tax (Appeals) or to the Appellate Tribunal. In C. Gnanasundara Nayagar Vs. The Commissioner of

Income Tax, , a Division Bench of this court, while construing the corresponding provision in the old Income Tax Act, 1922, viz., section 33A(2)

of the Indian Income Tax Act, 1922, held that an order of assessment cannot be revised by the Commissioner on an application by the assessee

u/s 33A(2) of the said Act, if an appeal has been preferred against that order to the appellate Tribunal and that the bar against revision remains

unaffected by the scope of the appeal preferred to the Tribunal, whether it is restricted by the assessee of his own choice or whether it is restricted

by the Tribunal. The Division Bench also pointed out that whether the relief claimed in the application for revision u/s 33A(2) was not the subject-

matter of an appeal to the Tribunal does not alter the position that the order of assessment was subject of the appeal. The word ""order"" in clause

(c) of the proviso to section 33A(2) of the Act refers to the order appealed against and not to other relief claimed in the appeal. The Division

Bench of this court in the above decision further observes thus (at page 380) :

Where the order appealed against is the order of assessment, the word ''order'' in clause (a) of the proviso to section 33A(2) obviously refers to

the order of assessment and not to the relief claimed in the appeal, because at that stage what would be factually asked for in the appeal would not

be known. The possibility of an appeal is enough to bar the assumption of revisional jurisdiction. It is the pendency of the appeal before the

Assistant Commissioner that bars such revisional jurisdiction under clause (b) of the proviso. It should be remembered that the scope of the

appellate jurisdiction of the Assistant Commissioner is much wide than that of the Tribunal. With reference to the Assistant Commissioner and the

Commissioner, the Act does not permit concurrent remedies, appellate and revisional, with reference to any of the reliefs an assessee could claim

with reference to an order of assessment. That is the position, even though the Assistant Commissioner is a subordinate of the Commissioner or is

deemed to be the subordinate of the Commissioner for the purpose of section 33A(2). But then the Commissioner can subsequently revise the

orders of the Assistant Commissioner. The Commissioner, however, has no jurisdiction to revise the order of the Tribunal. Therefore, under clause

(c) of the proviso, an appeal being preferred to the Tribunal is enough to bar the exercise of revisional jurisdiction. If no appeal has been preferred

to the Tribunal but there is still time to prefer the appeal, clause (a) comes into play and bars the revisional jurisdiction. If an appeal is preferred,

clauses (c) comes into play an bars the jurisdiction to revise the order appealed against, the whole or any portion of that order. The finality of an

assessment which flows from the order of the Tribunal cannot obviously be disturbed by the Commissioner in the exercise of his revisional

jurisdiction u/s 33A(2) . Consistent with the scheme of the proviso to section 33A(2), that revision an appeal are not concurrent remedies open to

an assessee, clause (a) and (c) bar the revisional jurisdiction, the first when an appeal is open to the Tribunal, and the second, when the appeal has

been preferred to the Tribunal, Running through the entire scheme is the basic concept of the unity of an order of assessment order of assessment

for purposes of appeal or revision.

The principle laid down in C. Gnanasundara Nayagar Vs. The Commissioner of Income Tax, , directly applies to the facts of the present case. It

is the admitted case of the petitioner that the assessment order dated March 20, 1978, for the assessment year 1975-76 was the subject-matter of

an appeal before the Commissioner of Income Tax (Appeals) and on October 28, 1978, the Commissioner of Income Tax (Appeals) has allowed

the said appeal. It is also admitted that the disposal of the appeal by the Commissioner of Income Tax (Appeals) on October 28, 1978, the

revision was filed against the order of assessment dated March 20, 1978, on January 9, 1979. It is a settled position of law that once an

assessment order has been made, the subject of an appeal to the Commissioners of Income Tax (Appeals) or to the Tribunal, the Commissioner''s

revisional power u/s 264 comes to an end and it cannot be exercised at all while the appeal is pending or even after it is disposed of. Further, as

pointed out by the Division Bench in C. Gnanasundara Nayagar Vs. The Commissioner of Income Tax, , the finality of the assessment which flows

from the order of the Commissioner of Income Tax (Appeals) or the order of the Tribunal cannot be disturbed by the Commissioner in the

exercise of his revisional jurisdiction u/s 264 of the Act and that the revision and appeal are not concurrent remedies open to the assessee. In view

of the clear position of law referred to above, the first respondent is quite right in dismissing the revision petition holding that he had no jurisdiction

to entertain or hear the same and that there is no infirmity in the said order of the first respondent.

For all the reasons stated above, I see no merit in this writ petition and it is liable to be dismissed. Accordingly, the writ petition is dismissed. No

costs.