TMI Blog1983 (9) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... filed praying to quash Exs. P-1 and P-3 orders passed by the respondents. On behalf of the petitioner-assessee, learned counsel, Mr. T. L. Viswanatha Iyer, contended that the ITO erred in passing Ex. P-1 assessment order without giving sufficient opportunity to the petitioner. It is the petitioner's case that as a result of a search of the business premises on November 11, 1976, the account books and other documents were taken away by the Department and so the petitioner was not able to file the profit and loss account and balance-sheet along with the return of income. That also disabled the petitioner from attending the hearing when the matter was posted for finalisation of the assessment. Without reckoning this fact, the 2nd responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith all the terms of notice issued under sub-section (2) of section 143, the Income-tax Officer, after taking into account all relevant material which the Income-tax Officer has gathered, shall make the assessment of the total income or loss to, the best of his judgment and determine the sum payable by the assessee or refundable to the assessee on the basis of such assessment. 146(1). Where an assessee assessed under section 144 makes an application to the Income-tax Officer, within one month from the date of service of a notice of demand issued in consequence of the assessment, for the cancellation of the assessment on the, ground (i) that he was prevented by sufficient cause from making the return required under sub-section (2) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly (3) In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier: Provided that the Commissioner may, if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period, admit an application made after the expiry of that period. (4) The Commissioner shall not revise any order under this section in the following cases (a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Commissioner (Appeals) or to the Appellate Tribunal but has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the petitioner to question the validity of a best judgment assessment. The plea that the assessment order was received by a partner who was not aware of the provisions of section 146 is to say the least idle. There is no suggestion that the partner who received the assessment order kept it with himself without informing the other partners about the receipt of the assessment order. That the petitioner firm is aware of the provisions of section 146 is borne out by the fact that an application under section 146 had been filed for the assessment year 1976-77 when the said assessment was completed to the best of the Income-tax Officer's judgment under section 144. Accordingly it is too late in the day for the Petitioner to question the validit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases if an appeal is filed against the best judgment assessment, it is open to the assessee to canvass the validity of the assessment itself in view of the decision of the Madhya Pradesh High Court in Suganchand Kanhaiyalal Rathi v. CIT [1958] 34 ITR 152, and that of the Andhra Pradesh High Court reported in Sundermul and Co. v. CIT [1967] 66 ITR 277. Says counsel, if the position that even in an appeal the validity of an assessment can be gone into, it can be so done in the revision filed under s. 264 of the Act also. Alternatively, the petitioner's counsel contended that reading s. 264 as a whole, it can be seen that the power of the Commissioner to revise any order is not subject to the provisions of this Act. The first part provides fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is true, that the powers of the Commissioner under s. 264 of the I.T. Act are very wide. However wide it may be, since the jurisdiction to pass orders under s. 264 of the Act is a discretionary one, the Commissioner is entitled to see only whether the order complained of is according to law. It is a discretionary jurisdiction. No doubt the Commissioner should exercise the discretion in a judicial manner. In O.P. No. 2415 of 1978-D (Parekh Brothers v. CIT, decided on 17-8-8 3 [1984] 150 ITR 105 (Ker) a Division Bench of this court, to which I was a party, has dealt with the scope and content of the power of revision vested in the Commissioner under s. 264 of the Act. He should take into account relevant and material factors and ignore irre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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