TMI Blog1998 (11) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, the revision petition could not be brought before the Commissioner, having regard to the prohibition contained in section 264(4)(c) of the Act. Section 264(4)(c) of the Act prohibits the Commissioner from revising any order under section 264 of the Act where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal. Learned counsel for the petitioner submitted that in view of the decision of the Supreme Court with regard to the CIT v. Shri Arbada Mills Limited (1998) 231 ITR 50, wherein it has scope of section 263 of the Act in the case of been held that the power of the Commissioner under section 263 of the Act extends to all such matters as had not been considered and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Mount Senai Hospital v. Income Tax Officer (1998) 231 ITR 510, wherein it was held that when there was no order in appeal at all in relation to a claim sought to be agitated in revision, the Commissioner was not right in refusing to exercise his jurisdiction, under that provision. The court in that case observed that the reason given by the Commissioner was specious. Learned counsel for the revenue submitted that the consistent view of this court is that if in respect of the order sought to be made the subject matter of revision an appeal had been filed against that order, the assessee would be C. debarred from invoking revisional jurisdiction. Counsel relied on the decision of this court in the case of, wherein this court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken a Gujarat High Court in the case of narrow view of the power of the Tribunal. With due respect to the learned judges who decided the cases relied upon by counsel for the petitioner, we are unable to agree with the view that notwithstanding the prohibition contained in section 264(4)(c) of the Act, an assessee can still assert a right to invoke revisional jurisdiction, even after having preferred an appeal against the order sought to be revised. The scope of an appeal is very wide. It is open to the assessee to urge all grounds relevant to the assessment including the raising of a claim to which the assessee may be entitled in law, but, which had not been made before the assessing officer. The assessee cannot after having failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the right of appeal against the original order and in such an appeal, the assessee is enabled to urge all the grounds in relation to the matter which was the subject-matter of the assessment including claims which had not been raised before the assessing officer. It is only in cases where the assessee has chosen not to avail of the appellate remedy, the assessee's interests are further protected by enabling the assessee to invoke revisional jurisdiction of the Commissioner. There is, therefore, no denial of the assessee's rights by the imposition of the bar under section 264(4)(c) of the Act. We are, therefore, unable to agree with the submission on behalf of the petitioner that the impugned order suffers from infirmity, requiring our ..... X X X X Extracts X X X X X X X X Extracts X X X X
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