TMI Blog1960 (4) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... egistering the firm and dividing the profits in the names of the alleged partners. Both the orders of the Income- tax Officer, namely the assessment order as well as the order granting registration, are, therefore, vacated with a direction that a fresh assessment after giving proper opportunity tot he assessee should be made. The assessee went to the Tribunal in appeal against that order and contended inter alia that sufficient opportunity had not been given to him to show cause why the order of assessment and the order granting registration should not be vacated. The Tribunal decided the appeal on 22nd January, 1957, and reached its conclusion as under: Consequently, not only do we hold that the assessee was not given sufficient opportunity of being heard as contemplated by section 33B of the Indian Income-tax Act but we are also of the opinion that the order passed by the Commissioner of Income-tax is not quite in consonance with the intention of the statute as contained in section 33B of the Income-tax Act. Consequently we set aside the order of the Commissioner of Income-tax and remand the case to him for giving the assessee sufficient opportunity of being heard, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is communicated to him. (4) An appeal to the Appellate Tribunal under sub-section (3) shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by a treasury receipt in support of having paid the fee of ₹ 100 and such appeal shall be dealt within the same manner as if it were an appeal under sub-section (1) of section 33. The greatest stress was laid before the Tribunal on the provision contained in clause (b) of sub-section (2) of section 33B. It was urged that the plain and clear meaning of this provision was that no order revising an order passed by an Income-tax Officer could be made by the Commissioner after the expiry of two years from the date of the order sought to be revised. On behalf of the Commissioner of Income-tax, it was urged that the order dated 4th July, 1957, (the second order) that was passed by the Commissioner of Income-tax could not be regarded as an order made under section 33B(1) simpliciter but must be regarded as one under section 33B(1) read along with sub-section (4) of that section which provides for an appeal to the Tribunal and which appeal had to be dealt with in the same manner as if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to carry out the directions given by the Tribunal by its order made on 22nd January, 1957. It is next urged that the operation of the material words in subsection (2) No order shall be made under sub-section (1).... after the expiry of two years from the date of the order sought to be revised must on a proper reading of the sub-section be confined to an order made suo motu by the Commissioner in exercise of his powers under sub-section (1) of section 33B and cannot apply to any order that he may subsequently make under section 33B in pursuance of any direction or order of the Appellate Tribunal of the High Court or the Supreme Court, as the case may be. It is said that when the Commissioner carries out the order or directions given in any such case, he cannot be said to exercise his powers or act under sub-section (1) of section 33B simpliciter but can be said to act under section 33B(1) read with section 33(4). In substance and effect, he would in any such case be doing nothing more or nothing less than carrying out the directions of the appellate authority or the High Court or the Supreme Court as the case may be. The contention is that this is the only possible construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Then, it is said that this latter order which was made on 4th July, 1957, could only be made under sub-section (1) of section 33B even if it was made after the direction or order of a higher authority. The language of the limitative provision in sub-section (2), so the argument has run, is absolute and permits of no modification and no qualification. Its natural and grammatical meaning can only be one and that meaning is that the Commissioner has no power to make any order under section 33B at any time after the expiry of two years from the date of the order sought to be revised. The circumstances that he makes his order after an earlier order made by him within time has been vacated and acts in pursuance of an orders or direction of a higher authority cannot touch the position and can make no difference to the application of this provision which imposes a bar of limitation. Mr. Shah has also drawn our attention to the provisions of section 34(3) as they stood at the material time. In order to appreciate this argument, it is necessary to set out the material part of those provisions: No order of assessment or reassessment, other than an order of assessment under section 23 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of abundant caution though it fit to engraft the proviso to sub-section (3) of section 34. An order of assessment under section 23 or a revisional order under section 33B or an orders of assessment or reassessment under section 34 must indubitably be made within the prescribed time. But what is to happen when an order so made is subsequently set aside by a higher authority and the Income-tax Officer or the Commissioner of Income-tax is asked by an order passed or direction given to make an order according to the same in respect of the same subject-matter? Should it in any such case be open to a party to say that the second order made in pursuance of the order of the higher authority or direction given by the higher authority is not to be operative and has to remain a dead letter simply because the period prescribed for the original making of the order has already expired? It is inconceivable that the Legislature would lay down any absolute rule prescribing a period of limitation which would operate in this absurd manner. That position seems to have been realised at the time of enacting the proviso to section 34 and the way we read that proviso, it seems to us that the proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g thing to read words in a statute which are not there except in the case of clear necessity and when clear reason for it is to be found in the favour corners of the statute itself. At the same time a casus omissus is not to be readily inferred. The preferable meaning of the clause under consideration seems to us to be to restrict it to the fitness of the matter. We must read the words of the clause though wide in the abstract as used with reference to an order made only suo motu by the Commissioner. They need not be read in too elastic a manner. They should preferably be regarded as expressive of a particular intention when it is possible to give them an import consonant with the particular subject matter and avoid a meaning resulting in absurdity, repugnancy or inconsistence. For all these reasons, it seems to us that if we were to give to clause (b) of section 33B(2) its literal meaning as urged by Mr. Shah, we would fail to give effect to the intended meaning of the lawmaker, albeit to be gathered from the Act itself and having regard to the object and aim of the relevant provisions. Where an alternative meaning is possible, and in our judgment this is a case where such meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X
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