TMI Blog1955 (10) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... er, Patiala, for stay of collection of the assessed amount till the decision of his appeal and he was permitted to pay the amount in monthly instalments of ₹ 1,00,000 each starting from the 15th September, 1953, by order dated the 28th August, 1953. The petitioner then moved Shri P.K. Sen Gupta, the then Income-tax Commissioner, who, after hearing both sides, passed a detailed order on the 14th October, 1953. The operative portion of the order reads- In view of the prima facie evidence adduced on behalf of the assessee, in my opinion, this is a fit case where the demand of tax should be stayed till the final decision of the point by the Tribunal in case the Appellate Assistant Commissioner does not accept the assessee's contention. I would, however, direct the assessee to pay a sum of ₹ 10,000 as a token payment and the balance sum of ₹ 4,50,545-9-0 will be stayed till the decision of the appeal by the Appellate Tribunal. In the meantime, the Inspecting Assistant Commissioner is requested to take steps to obtain from the assessee an undertaking not to sell 2? lacs worth of shares in R.B. Banarsi Das Co., Ltd., and another ₹ 2 lacks worth of Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Commissioner of Income-tax, has urged that the order of the 14th October, 1953, was not passed under section 33A but was passed by the Commissioner in exercise of his administrative or executive jurisdiction and therefore it could be recalled by his successor at his pleasure. It was also contended that even if it be considered that the 1953 order was made under section 33A then although there is no specific provision giving power to the Commissioner to his successor to review it, this power is inherently vested in him. It was further urged that the 1953 order was beyond the jurisdiction of the Commissioner and therefore it was a nullity and it was open to his successor to ignore it and issue the notice that he did. The learned counsel stated that the 1955 notice was issued because after obtaining the order in 1953 the petitioner had been adopting the dilatory tactics which have resulted in delaying the disposal of his appeals. The notice in question was also sought to be justified on the ground of correction of mistake apparent from the record under section 35 of the Income-tax Act. In view of these contentions the main point that requires decision is whether the 1953 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been erroneously exercised but that by itself will not show that it was exercised independently of the provisions of the Act. I am, therefore, of the opinion that the Commissioner's order dated the 14th October, 1953, was made under section 33A of the Income-tax Act. At that time the petitioner was anxious that he should not be compelled to pay the assessed tax in lump sum or by instalments before the final decision of his objections to the supplementary assessment. He moved the Income-tax Officer, then the Inspecting Assistant Commissioner and finally the Commissioner. The Commissioner passed the order after hearing both the parties. In the circumstances, it must be held that the Commissioner proceeded with the case and passed the order on the 14th October, 1953, acting or purporting to act under section 33A of the Income-tax Act and I hold accordingly. It was then contended by Mr. Sikri that it was open to the Commissioner or his successor to review or modify the 1953 order in view of the subsequent conduct of the petitioner. The learned counsel conceded that the Income-tax Act does not specifically provide for review or amendment of orders, but he relied on the inheren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er right of appeal or reference to the High Court. Equally once the Commissioner has exercised his power he becomes functus officio and he cannot re-exercise his powers. Though the Commissioner is given power by this section to revise the orders of his subordinate authorities, he cannot review his own decision except under section 35, to correct a mistake. In my opinion, the Legislature in its wisdom has given the Commissioner supervisory jurisdiction of modifying any order passed by his subordinates under the Act within certain limitations but has given no power to him to review or modify his own order and such a jurisdiction cannot be inferred on the basis of a supposed inherent right. I, therefore, hold that the Commissioner or his successor has no power to review or modify the order already passed by him under section 33A of the Indian Income-tax Act. The next contention advanced by Mr. Sikri on behalf of the Commissioner of Income-tax was that the 1953 order was a nullity as the then Commissioner had no jurisdiction to order stay of payment of tax beyond the decision of the assessee's appeal by the Appellate Assistant Commissioner. For this purpose he has relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Officer accepted the 1953 order as binding on him and the taxpayer paid ₹ 10,000 in cash and carried out the other conditions laid down in the order. It appears to me that after two years it is not open to his successor to ignore the order and pass an order demanding immediate payment of tax. Further, it will be noticed that he can have this power of demanding payment of tax immediately only if his predecessor had power to extend time, otherwise it will be open only to the Income-tax Officer to start proceedings of recovery under section 46(1) and that has not been done in the present case. I, therefore, reject this contention also. Finally, it was urged that in any case the Commissioner in 1953 made a mistake which can be rectified under section 35 of the Act by his successor. The suggestion is that the Commissioner made a mistake in passing an order extending date of payment to the date of decision by the Appellate Tribunal and that he had no jurisdiction to do. In my opinion, even if this be taken to be the correct view of law, the case is not governed by section 35 of the Act. It is well settled that mistake is not a mere forgetfulness but it is a slip made not by d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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