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2009 (8) TMI 1126 - HC - Income TaxRevision u/s 263 - nature of receipts - receipt of compensation - Whether on the facts and circumstances of the case s. 28(va) of Act 1961 applies ? - HELD THAT:- Payment is for not carrying out any activity or for refraining from carrying out activity in relation to fish farming business which otherwise was being allowed to be carried out by the petitioner, by the erstwhile owner Mr. Vasant Manohar Wagle. In our view, in the facts and circumstances of the case at hand, this s. 28(va)(a) squarely applies. AO, therefore, was justified in holding that the amount was received by the assessee, by way of compensation and/or a sum for not carrying out any activity in relation to business and was the income of the assessee chargeable to income-tax under the head of profits and gains of business or profession. Admittedly, order passed by the AO was not appealed against by the petitioner. It is apposite to refer to the s. 246 of the Act 1961. Sec. 246 provides appeal against orders. There is no dispute about the proposition that there is no inherent right of appeal. It is to be specifically conferred by the statute providing for an appeal. The appellate authority in an appeal against an order of assessment has power to confirm, reduce, enhance or annul the assessment or to set aside the assessment or refer the case back to the ITO or make fresh assessment (s. 251). It is thus clear that what remains is final order after giving effect to the orders of the appellate authority, is an order under ss. 143 and 144. It is in this way appeal is of continuation of the exercise of assessing the income of the assessee. Substantive statutory right of appeal, by way of s. 246 thus is made available to the aggrieved person/assessee. Suffice it to say that such substantive right was not resorted to, in the case on hand, by the petitioner/assessee. As apparent from s. 264 that there is a wide power with the CIT under revisional jurisdiction. He may call for records of proceeding under this Act, may make such inquiry or cause such inquiry to be made and pass such order thereon however, not being an order prejudicial to the assessee. Even though, power vested with the learned CIT seems to be wide under s. 264, it cannot be said to be too wide to that of the power vested with the appellate authority while deciding an appeal filed by the assessee under s. 246. There is a discretion vested with the CIT to pass such order as he deems fit on the facts obtaining in the case. However, such discretion has to be exercised by the CIT judiciously i.e. in a judicious manner. The categorical observation made by the CIT that the assessee was not having any legal rights as a tenant in the property sold by the land owner to M/s Goa International School (P) Ltd. is legal and proper. With this observation, learned CIT has repelled the ground pertaining to s. 45 of the Act 1961. CIT has also referred to the submissions made by the Authorised Representative and in para 6 reference is made to the written submissions made by the petitioner's Authorised Representative Mr. Mahesh Dhond, chartered accountant. The learned CIT reached the conclusion that there is no transfer of any capital asset by the assessee for the compensation received in his hands as capital gains. CIT reached to the conclusion that there is no case for interference with in revisional jurisdiction. On examination of the order passed by the learned CIT within the parameters of s. 264 in our opinion, contention on behalf of the petitioner that it is a non-speaking order cannot be accepted. In our view, the learned CIT has passed a well reasoned order referring to the material available on record and considering the submissions made on behalf of the parties. We are unable to find any fault with the order passed by the learned CIT under s. 264 of the Act 1961. Relevant question No. 2 accordingly answered against the petitioner. Judicial review under Arts. 226 and 227 of the Constitution - Nomenclature alone does not decide the invocation of powers of this Court by the citizen. We have considered the pleadings in the writ petition with prayer. Learned counsel for the petitioner, submitted, that the case for judicial review is established. Learned Government advocate Mr. Rivonkar submits that there is no case for invocation of extraordinary jurisdiction of this Court. We have also considered the provisions laid down under ss. 153, 154 and 260A of the Act 1961. Apart from this, we have considered the material placed on record by the petitioner along with the writ petition; judicial review by this Court under Arts. 226, 227 has its own self-impose restrictions and limitations. In our considered opinion, there is no case for interference in the order passed by the learned CIT in the case on hand, question No. 3 accordingly answered against the petitioner.
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