TMI Blog1993 (3) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner is a public limited company and is assessed to income-tax. The Directorate of Revenue Intelligence made a raid in the premises of the petitioner on and from March 24, 1988. A raid was also conducted on the residence-cum-office of its managing director, Dr. B. D. Panda. While the foreign exchange regulation authorities were in the premises and were conducting their search, they requested the income-tax authorities to come and conduct raid in terms of section 132 of the Act. According to the petitioner, the materials seized cannot be categorised as unexplained investment, expenditure or any bullion, jewellery or other valuable articles not recorded in the books of account. According to it, the amounts expended which were not recorded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) and (4) of the Act for the concerned four years and the petition was filed on June 9, 1988, and the matter is pending with the Commissioner. Revised returns were filed for the four years though the assessments for the assessment years 1976-77 to 1979-80 were pending in appeal before the Income-tax Appellate Tribunal, Cuttack Bench. The assessments were set aside, as the result, of the search conducted in the business premises and the residence of the petitioner and its managing director brought new materials to the fore and the findings, if any, recorded by the Tribunal were likely to affect the assessment to be made on the basis of the revised returns filed by the assessee. Subsequently, the assessments were completed under section 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Russell Properties Pvt. Ltd. v. A. Chowdhury, Addl. CIT [1977] 109 ITR 229. Learned counsel for the Revenue, on the other hand, contended that whether the materials do exist or not can be considered by the Commissioner after the assessee submits its reply. It is contended that, if the petitioner satisfies the Commissioner about the non-desirability to proceed further, certainly the Commissioner shall not proceed with the matter. But, whether materials exist for exercise of power or not can be gauged only after the assessee-petitioner submits its reply and participates in the proceeding. The petitions are labelled to be premature. The petitioner's assertion is that, even if, constitutionally, the amendment brought in with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns issued by the Deputy Commissioner under section 144A ; (ii) an order made by the Deputy Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director-General or Commissioner authorised by the Board in this behalf under section 120 ; (b) `record' includes all records relating to any proceeding under this Act available at the time of examination by the Commissioner ; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject-matter of any appeal, the powers of the Commissioner under this sub-section shall extend to such m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d commencing the inquiry. All that he is required to do before reaching his decision and not before commencing the inquiry, is to give the assessee an opportunity of being heard and make or cause to be made such inquiry as he deems necessary. These requirements having nothing to do with the jurisdiction of the Commissioner, they pertain to the question of natural justice. ( CIT v. Electra House [1971] 82 ITR 824 (SC)). Originally, an order passed under section 147 of the Act was not revisable by the Commissioner in terms of sub-section (2) of section 263. However, by the Taxation Laws (Amendment) Act, 1984, the embargo was removed with effect from October 1, 1984. The time-limit for exercise of power which was originally indicated to be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner has referred to certain materials to come to a prima facie view that the assessment made by the Assessing Officer was done in a perfunctory manner without proper examination of the records and without making investigation as was required. As observed by the apex court in Rampyari Devi Saraogi v. CIT [1968] 67 ITR 84 and Smt. Tara Devi Aggarwal v. CIT [1973] 88 ITR 323, the Commissioner may consider an order of the Assessing Officer to be erroneous not only if it contains some apparent error of reasoning or of law or of facts on the face of it but also where there has been failure to make inquiries which were called for in the circumstances of the case. The petitioner's assertion is that the materials referred to were duly c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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