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1958 (11) TMI 24 - SC - Income TaxWhether in this case there was inordinate delay in the matter of the presentation of this petition to the court? Whether the relief sought by the petitioner is in respect of three orders and notices of the Income-tax Officer who is respondent No. 2, as well as the order passed in revision by the third respondent, who is the Commissioner of Income-tax and it is said that there is no ground mentioned in the petition for any writ being issued in respect of the order passed by the third respondent in revision? Held that:- There can be no rule which may be adhered to in every case, because the very conception of discretion rules out the existence of any rigid formula. In the present case, we do not think we would be justified in rejecting the petition on the ground that there has been inordinate delay in the filing of the petition. There were clear and tenable reasons for the distinction to be drawn between an appeal and a revisional application when the revisional application was dismissed. There was an appeal against that judgment and the appeal court confirmed that decision. It was held by the appeal court that when the revisional court interferes with the order of the court below, the result is not that the order of the lower court is merged in the order passed by the revisional court, but the result is that the order of the revisional court sets aside or modifies the of the lower court. Whereas in the case of an appeal when the appeal is dismissed the appellate court confirms the decree of the trial court, in the case of a revisional court when it dismisses the petition in revision all that it does is that it does not interfere with the order of the court below. The effect of the dismissal of the petition is not to confirm the order of the trial court, because no confirmation is necessary from the revisional court. When the revisional court dismisses the petition, the true effect in law is that it refuses to exercise the revisional jurisdiction conferred upon it. The penal interest that can be charged to any assessee under sub-section (6) can only be in respect of an assessee who has paid tax under sub-section (2) or sub-section (3) on the basis of his own estimate, and the assessee in the case before us could not have been charged with any penal interest under sub-section (6). If she could not have been charged any penal interest under sub-section (6), says Mr. Joshi, there could be no question of invoking the fifth proviso to that sub-section. In our judgment, there is considerable force in this argument of learned counsel for the Revenue. Appeal allowed.
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