TMI Blog1981 (3) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... ved. The appeal came to be partly allowed and partly disallowed by the AAC by his order dated October 27, 1976. The petitioner-assessee filed an appeal against the order of the AAC, to the extent the appeal was disallowed, before the Tribunal at Bangalore. The appeal before the Tribunal came to be withdrawn with the permission of the Tribunal on May 9, 1977, and on May 17, 1977, a revision application came to be filed under s. 264 of the Act before the Commissioner of Income-tax, Karnataka, Bangalore-the respondent herein-against the order of the AAC to the extent the assessee-petitioner was dissatisfied with that order. In the meanwhile, the department had filed an appeal before the Tribunal against the order of the AAC in so far as it rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal against an assessment order would not deprive the assessee of his right to move the Commissioner under s. 264 of the Act and the said instructions being binding in nature on the Commissioner, he had wrongfully declined to exercise his jurisdiction. In so far as the first of the contentions is concerned, Shri G. Sarangan, learned counsel for the petitioner, has analysed the language of the provisions of s. 264 of the Act and submitted that the words " assessment order " occurring in sub-s. (4)(c) of s. 264 of the Act should be read down or read restrictedly to mean and include that part of an assessment order which is made the subject of an appeal before the Commissioner (Appeals) or the Tribunal. He has emphasised the scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncements. Whether the petitioner should have been heard on November 20, 1978, loses some of its importance. Whether the revision petitioner ought to bring to the notice of the respondent-Commissioner the circular instructions of the CBDT is of little consequence. It should be presumed that all the Commissioners of Income-tax in the country are aware of the instructions issued by the Board as they are all subordinate authorities in terms of s. 119 of the Act. The circular instructions relied upon by the petitioner is as follows: " XVI/11/69-Scope of Proviso (c) to section 33A(2) of the Income-tax Act, 1922, and corresponding sub-section (4)(c) of section 264 of the Income-tax Act, 1961. The scope of the above-noted provisions was consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction vested in him in passing the impugned order and, therefore, that order is liable to be set aside. I may further observe that on the date the revision petition was dismissed, i. e., on December 22, 1978, the AAC's order appealed against by the department before the Tribunal was not the subject of an appeal before the Tribunal as the same had been dismissed on March 28, 1978, nearly 9 months before. In the result, the rule is made absolute. The impugned order is set aside and the matter remitted to the respondent with a direction to entertain the revision application of the petitioner pertaining to the assessment year 1970-71 and dispose of the same on merits in accordance with law. There will be no order as to costs. - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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