TMI Blog1977 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal on August 24, 1972. The Commissioner of Agrl. I.T. took proceedings under s. 34 of the Tamil Nadu Agrl. I.T. Act, 1955, in March, 1973. In the view of the Commissioner, the assessee was only growing tea and was not a manufacturer of tea so that r. 7 of the Tamil Nadu Agrl. I.T. Rules would have no application to him. Consequently, in the opinion of the Commissioner of Agrl. I.T., the development allowance granted by the Assistant Commissioner was not proper. He, therefore, issued a notice to the assessee asking it to show cause why the order of the Assistant Commissioner in so far as it allowed the claim for development allowance should not be revised. After hearing the assessee, the Commissioner of Agrl. I.T. came to the conclusion that the allowance as given by the Assistant Commissioner was wrong and, therefore, he directed that the orders passed by the Assistant Commissioner January 31, 1972, be set aside and the order of the Agrl. ITO dated September 19, 1971, be restored in respect of this item of allowance. The assessee has challenged this order of the Commissioner in the present revision petition. The first contention taken on behalf of the assessee is that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) the order has been made more than three years previously. (3) Every application by an assessee under sub-section (1) shall be accompanied by a fee of fifty rupees. (4) Any order passed under sub-section (1) shall, subject to revision by the High Court under section 54, be final." The learned counsel for the assessee submitted that so long as the order of the Assistant Commissioner had been appealed against before the Appellate Tribunal, the Commissioner would have no jurisdiction to revise the order of the Assistant Commissioner. The learned additional Government pleader submitted that s. 34(1) conferred wide powers of revision on the Commissioner and that there are only certain restrictions under the provisions of sub-s. (2) of s. 34 and that if those restrictions did not apply to any particular case then the Commissioner had jurisdiction to revise the particular order of the Assistant Commissioner. As can be seen from the provisions of s. 34, the Commissioner can either of his own motion or on application by the assessee, call for the record of any proceeding under the Act which had been taken by any authority subordinate to him. He could make such enquiry or cause suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner should not have exercised his power of revision under s. 34 in the present case. The learned counsel for the assessee submitted that in the above view, the Commissioner would have two concurrent remedies against the order of the Assistant Commissioner, one of filing an appeal before the Appellate Tribunal through the Agrl. ITO and the other of taking up proceedings in revision. According to him, on general principles, it should be held that the Commissioner could exercise his powers only in a case where the matter had not gone on appeal to the Appellate Tribunal. In support of his contention, he relied on the decision of this court in C. Gnanasundara Nayagar v. CIT [1961] 41 ITR 375. That was a case in which the assessee had filed an appeal before the AAC and thereafter before the Tribunal. After the disposal of the appeal by the Assistant Commissioner but before the appeal was disposed of by the Tribunal, the assessee applied to the ITO and thereafter to the Commissioner for relief under one of the provisions of the Indian I.T. Act, 1922. The question that came up before this court was whether the revision petition taken before the Commissioner under s. 33A(2) of the India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when no appeal had been preferred to the Appellate Tribunal under s. 32. In the course of that decision, this court pointed out as follows (p. 229): " Suffice it to say that there is no restriction whatsoever for the Commissioner exercising his power under section 34 of the Act, when no appeal had been preferred to the Appellate Tribunal under section 32. The contention of the learned counsel for the assessee is that as a right of appeal has been provided against the order of the Commissioner, if the Commissioner is aggrieved, he can only direct the Income-tax Officer to file an appeal under section 32 and cannot invoke the revisional jurisdiction under section 34. We are unable to find any such restriction imposed on his powers under section 34." This case, instead of supporting the contention urged before us on behalf of the assessee, clearly supports the stand taken by the Addl. Govt. pleader that the powers of revision under s. 34 are unrestricted except in the manner provided by sub-s. (2) of s. 34. The other observations in the said judgment have necessarily to be read in the context and cannot be understood as if this court decided that in cases where an appeal had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senting the value of cotton purchased by the assessee from outside the State of Madras on the ground that it was wrongly excluded in the computation of the turnover. The assessee objected to the proposed revision on several grounds. But, the Board of Revenue rejected these objections and passed an order of revision directing the assessment of the relevant amount to tax. On appeal, the High Court set aside the Board's order on the ground that the said order was barred by limitation Under s. 12(4)(b) of the Tamil Nadu General Sales Tax Act, 1939. On further appeal to the Supreme Court, it was contended by the State of Madras that the proceedings were not barred by limitation as the order that was sought to be revised was the order dated 21st August, 1954, of the Dy. Commissioner. In dealing with this contention, the Supreme, Court observed the following on the doctrine of merger (p. 149): " But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal, passed in an appeal on revision, there is a fusion or merger of two orders irrespective of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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