TMI Blog1957 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... the neighbouring collieries. On or about the 14th March, 1953, the petitioner filed an appeal against the assessment order, before the Assistant Commissioner of Income Tax, who fixed a hearing on the 10th February, 1954. Sometime before the hearing of the appeal, the petitioner applied for an adjournment till the 1st week of March, 1954, inter alia on the ground that the petitioner was expecting certain formation and documents from its mines. This application was rejected on the ground that the Company had ample time for nearly a whole year to procure the necessary information from its colliery, and an adjournment was not justified. On the 10th February, 1954, nobody appeared on behalf of the petitioner and the appeal was accordingly heard ex parte and was dismissed. As against this order the petitioner had several courses open to him. One was to prefer an appeal under Section 30 of the Indian Income Tax Act, (hereinafter referred to as the 'Act') limitation for which is 30 days. Alternatively, it could proceed under Section 33-A which gives power of revision to the Commissioner. In fact, the petitioner made an application under Section 33-A (2) of the Act. The limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any person and examining him on oath, discovery and inspection, etc. He argues that if the Commissioner is a Court, then it is unthinkable that he can decide an application made by a party without giving a hearing. Mr. Dutt has referred to the Supreme Court decision in Surajmall Mohta and Co. v. A. V. Visvanatha Sastri, [1954]26ITR1(SC) . There, Mahajan, C. J., was dealing with Section 34 of the Act and he said that under the provisions of Section 37 of the Act, the proceedings before the Income Tax Officer are judicial proceedings and all the incidents of such judicial proceedings have to be observed before the result is arrived at. 4. In order to examine the nature of the provisions embodied in Section 33-A (2), it will be necessary to examine the scheme of the Act for the hearing of Appeals and Revisions. The Indian Income Tax Act is a self-contained Act and is a Code in itself. Where it provides for a particular procedure, that procedure must be followed. In other words, where the Act lays down a particular procedure, that must be followed, and it is not open to this Court to introduce a procedure which is contrary to that laid down in the Act. It follows that if the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch orders thereon, not being an order prejudicial to the assessee, as he thought fit. Originally, this power was given only to the Commissioner acting suo motu. Now however, he can be moved by an assessee under Sub-section (2). It will be observed that while in any proceedings in appeal, or in revision under Section 33-B, the assessment order can be varied in any way that the Appellate or the Revisional authority thinks proper, there is a special limitation in Section 33-A, namely, that an order cannot be, made prejudicial to the assessee. It will also be observed that in this section, as distinguished from the others that I have just mentioned, there is no express provision for hearing the assessee. The original Section 33 of the Act was the subject-matter of interpretation by the Judicial Committee of the Privy Council: Commissioner of Income Tax, West Punjab v. The Tribune Trust, Lahore. Dealing with Section 33 of the Act, Lord Simonds said as follows:-- The fallacy implicit in this question has been made clear in the discussion of the first two questions. It assumes that Section 33 creates a right in the assessee. In their Lordships' opinion, it creates no such right. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn motion or at the instance of the assessee. If it was intended to alter the nature of his powers so as to transform the administrative function into a judicial one, then the wordings would have been different Under the section the Commissioner may call for the record, he may make such enquiry as he thinks fit, or he may cause such enquiry to be made as he thinks fit and then pass an order. The only limitation is that he must not do anything which is contrary to the provisions of the Act. If it is to be held that the proceedings are judicial, or that the Commissioner is acting as a Court, then each step taken would partake of the ordinary procedure of the Courts, that is to say, of judicial proceedings, Every enquiry made or caused to be made must be made upon notice to the party, and in either case it must be done in his presence and after hearing him and/or his lawyers. It does not seem to me that it was intended that this elaborate procedure was intended to be followed in the case of a revision under Section 33-A, whether it is under Sub-section (1) or Sub-section (2). The Scheme has al-ways been and still is that the Commissioner will look into the records and will consider th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made, an excuse was put forward that the assessee had not received informations and documents from its Mines. This excuse, the learned Appellate Assistant Commissioner refused to entertain, and I think that he was perfectly justified. On the 10th February, 1954, when the appeal was called on, nobody appeared on behalf of the assessee, a practice which has been condemned by the Judicial Committee. However the dismissal of this appeal is not directly in question before me. The only point that arises for determination is as to whether the petitioner was entitled to a hearing under the provisions of Section 33-A (2) and whether the order made without hearing him is illegal and should be set aside. A point has been taken that there is an infringement of Article 14. But I fail to see how such an infringement can be established. The Income Tax Act itself gives alternative remedies and lays down alternative procedures. It is the option of the assessee to take advantage of one remedy or another. After having availed himself of the advantage, it is scarcely open to him to turn round and speak of discrimination. 6. For the reasons aforesaid, I am of the opinion that no ground has been ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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