TMI Blog2020 (3) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... the Principal Commissioner, who may call for the records and may, after giving the assessee an opportunity of being heard, pass the order. Using of word in the present context may is capable of meaning must or shall where a discretion is conferred upon a public authority coupled with an obligation, thereby the use of word may has to be construed to mean a command. In view of the provisions contained in section 263, the Commissioner is duty bound to give an opportunity of being heard, while exercising the revisionary jurisdiction, to the appellant while enhancing or modifying the assessment or cancelling the assessment or directing for fresh assessment in conformity with the provisions contained under section 263 of the Income-tax Act. - I.T.A. No. 24 of 2019 - - - Dated:- 17-3-2020 - Dr. B. R. Sarangi And S. K. Panigrahi JJ. For the Appellant : Sidhartha Ray and K. K. Sahoo , Advocates For the Respondent : S. S. Mohapatra , Senior Standing Counsel (Income-tax) JUDGMENT DR. B. R. SARANGI J. - 1. The appellant-assessee, by way of this appeal, has challenged the order dated November 13, 2019 passed by the Income- tax Appellate Tribunal, Cuttac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Income-tax, Sambalpur the assessee appealed before the Income-tax Appellate Tribunal, which upheld the order passed by the Principal Commissioner of Income-tax and dismissed the appeal preferred by the assessee. 3. Mr. S. Ray, learned counsel appearing for the appellant contended that exercising of jurisdiction by the Principal Commissioner of Income-tax, Sambalpur under section 263 of the Income-tax Act, 1961 to revise the order of assessment for the year of assessment 2014-15 on the allegation, that the excise duty is disallowable under section 143B as the assessee had not paid the same before due date, is not correct, because of the fact that the assessee had not claimed any deduction towards excise duty of ₹ 25,75,921 under the P and L (profit and loss) account, therefore the question of disallowing under section 143B does not arise. It is further contended that the provisions contained under section 263 of the Income-tax Act, 1961 having not been complied with and as such, the order having been passed without giving opportunity of hearing as required under law, the Income-tax Appellate Tribunal is not justified in upholding the order passed by the Principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upholding the order of the Principal Commissioner of Income-tax, Sambalpur. 7. For just and proper adjudication of the substantial question, as formulated above, it is imperative to go through the provisions contained under section 263 of the Income-tax Act, 1961 : 263. (1) The Principal Commissioner or Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or can celling the assessment and directing a fresh assessment. Explanation 1.-For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include- (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l late Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation.-In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. On a bare perusal of the above mentioned provisions, it is made clear that if the Principal Commissioner or Commissioner, on calling for and examining the record of any proceeding, considered that any order passed by the Assessing Officer is erroneous and prejudicial to the interests of the Revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deemed necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. 8. At this juncture, it is profitable to examine the word may uses in section 263 of the Income-tax Act, as quoted above. Prima facie the word may must be given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of being heard should be given to the assessee and the stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33B of the Act. The reference made to section 33B of the Indian Income-tax Act, 1922 is parimateria to section 263 of the Income-tax Act, 1961 as amended by the Finance Act (2 of 2019). Therefore, giving an opportunity of being heard is a requirement under section 33B of the Act itself, if the same is complied with, it will be construed that provisions contained therein has been complied with. 16. In Electro House (supra), the apex court has referred to section 33B(1) of the Indian Income-tax Act, 1922, which reads as follows : 33B. Power of Commissioner to revise Income-tax Officer's orders.-(1) The Commissioner may call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary, pass such order thereon as th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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