TMI Blog1994 (3) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ch related to a sum of Rs. 3,73,541 being the payments on account of certain non-compliance with cloth control obligations. The Commissioner of Income-tax (Appeals) accepted the contention of the petitioner and by his order dated October 28, 1978, allowed the appeal. In the assessment order, two other issues were disallowed by the officer, viz., (1) extra shift allowance in respect of electrical machinery, and (2) incremental liability on account of gratuity claim of Rs. 6,20,032 for the year in question. The Income-tax Officer had also charged interest under section 215 of the Income-tax Act, 1961 (hereinafter referred to as " the Act ") in a sum of Rs. 2,12,625. Against the charging of interest under section 215 of the Act in a sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of a writ of certiorarified mandamus to quash the order of the first respondent in C. No. 1411/(252) of 1978-79 and C. No. 1411/(235) of 1981-82 dated June 19, 1982, and to direct the first respondent to consider the petition dated January 9, 1979, and dispose of the same on merits. Mr. Janarthana Raja, learned counsel for the petitioner, submitted that the first respondent is not correct in his view that the revision petition is not maintainable by reason of section 264(4)(c) of the Act and that the first respondent overlooked the position that any point which had not been agitated in appeal filed before the Commissioner of Income-tax (Appeals) should be considered as not having been appealed against and, therefore, the jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) or to the Appellate Tribunal. " The provisions of clause (c) of sub-section (4) of section 264 of the Act provides that the Commissioner of Income-tax exercising the revisional powers under section 264 of the Act cannot revise any order under the said section where the very same order has been made the subject-matter of an appeal to the Commissioner of Income-tax (Appeals) or to the Appellate Tribunal. In C. Gnanasundara Nayagar v. CIT [1961] 41 ITR 375, a Division Bench of this court, while construing the corresponding provision in the old Income-tax Act, 1922, viz., section 33A(2) of the Indian Income-tax Act, 1922, held that an order of assessment cannot be revised by the Commissioner on an application by the assessee und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Tribunal. With reference to the Assistant Commissioner and the Commissioner, the Act does not permit concurrent remedies, appellate and revisional, with reference to any of the reliefs an assessee could claim with reference to an order of assessment. That is the position, even though the Assistant Commissioner is a subordinate of the Commissioner or is deemed to be the subordinate of the Commissioner for the purposes of section 33A(2). But then the Commissioner can subsequently revise the orders of the Assistant Commissioner. The Commissioner, however, has no jurisdiction to revise the order of the Tribunal. Therefore, under clause (c) of the proviso, an appeal being preferred to the Tribunal is enough to bar the exercise of revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) on October 28, 1978, the revision was filed against the order of assessment dated March 20, 1978, on January 9, 1979. It is a settled position of law that once an assessment order has been made, the subject of an appeal to the Commissioner of Income-tax (Appeals) or to the Tribunal, the Commissioner's revisional power under section 264 comes to an end and it cannot be exercised at all while the appeal is pending or even after it is disposed of. Further, as pointed out by the Division Bench in C. Gnanasundara Nayagar v. CIT [1961] 41 ITR 375 (Mad), the finality of the assessment which flows from the order of the Commissioner of Income-tax (Appeals) or the order of the Tribunal cannot be disturbed by the Commissioner in the exercise of h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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