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2022 (4) TMI 862 - HC - Income TaxCommissioner of Income Tax jurisdiction under Expenditure Tax Act, 1987 - Revision of orders by the Commissioner - Assistant Commissioner empowered to act in place of the Commissioner under Section 21 of the ET Act - notice under Section 21 of the E.T. Act dated 01/10/2002 was issued and signed by the Assistant Commissioner of Income Tax - HELD THAT:- Record was examined by the Assistant Commissioner and not by the Commissioner of Income Tax. Section 21 of the E.T. Act mandates the examination of records by the Commissioner of Income Tax and for issuance of notice under Section 21 of the E.T. Act Commissioner of Income Tax himself is required to apply his mind. The Commissioner of Income Tax cannot pass an order in revision order on the basis of a notice issued by his subordinate officer. The Assistant Commissioner of Income Tax in his notice dated 01/10/2002 nowhere stated that the said notice was issued on the instructions or direction of the Commissioner of Income Tax. Insofar as principle of waiver is concerned, it is settled position of law that the same cannot be invoked so as to confer jurisdiction. In this case, the Assistant Commissioner Income Tax had issued notice under Section 21 of the E.T. Act who admittedly had no jurisdiction. In terms of Section 21 of the E.T. Act, the Commissioner of Income Tax is the competent authority vested with that power. Therefore, the notice under Section 21 of the E.T. Act has necessarily to be issued by the Commissioner of Income Tax and not by the Assistant Commissioner. As a consequence, the notice being without jurisdiction, all the proceedings subsequent thereto are without authority of law. In Sahni Silk Mills (P) Ltd.. [1994 (7) TMI 312 - SUPREME COURT] the Supreme Court was considering the legality of resolution empowering the Director General to authorize any other Officer to exercise his powers. The Court found that in the absence of enabling provision, such delegation would not be permissible and that the legislature can permit any statutory authority to delegate its power to any other authority after such a policy is indicated in the statute itself and when parliament has specifically appointed an authority to discharge a function, it cannot be readily presumed that it had intended that its delegate should be free to empower another person to act in his place. In the instant case, nothing has been shown to us whereby the Assistant Commissioner was empowered to act in place of the Commissioner under Section 21 of the ET Act.. As we can see from the aforesaid decisions, an Officer superior in rank to the Assessing Officer was found to have no jurisdiction to issue the notice in question. Applying these principles at the case at hand, we have no hesitation in concluding that the Assistant Commissioner could not have issued the notice in the instant case.
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