TMI Blog1976 (12) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... thus : " 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 be deems 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. (2) No order shall be made under sub-section (1)--...... (b) after the expiry of two years from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961-62 and directed the Income-tax Officer to make fresh assessments in accordance with law. 'The assessee went up on appeal under the provisions of section 33B(3). Before the Tribunal the assessee submitted that no notice to show cause under section 33B had been served on her either actually or constructively. The Commissioner sent the show-cause notice by registered post addressed to the assessee at 13, Rameswar Malia Lane, Howrah, but it came back unserved with the postal remark " not known Thereafter, personal service was attempted through process server at No. 5, Abdul Rasul Avenue. On 21st October, 1963, the Inspector reported that be went to No. 5, Abdul Rasul Avenue, but he was informed that the assessee was out of station an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (1) of section 28 applies or an order of assessment or reassessment in cases falling within clause (a) of sub-section (1) or subsection (1A) of this section shall be made after the expiry of four years from the end of the year in which the income, profits or gains were first assessable...... Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessment or reassessment may be made shall apply to a reassessment made under section 27 or to an assessment or reassessment made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order under section 31, section 33, section 33A, section 33B, section 66 or se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made. There is therefore, a deliberate omission in section 33B and such omission cannot be filled in by the court. It is argued further that the second order which the Commissioner would have to pass to give effect to the Tribunal's direction would still be an order under section 33B and such order must satisfy the limitations provided in that section. Thirdly, the Tribunal under section 33(4) may give such directions as it thinks fit but it cannot give a direction which in law could not be given effect to by the Commissioner in view of the special period of limitation in section 33B. It appears that similar arguments were advanced before a Division Bench of this court in Income-tax Reference No. 117 of 1967 (National Taj Traders v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1) objects for any reason to the approval given by the Commissioner under sub-section (8), he may make an application to the Board stating therein the reasons for such objection and requesting for the return of the books of account or other documents. (11) If any person objects for any reason to an order made under-subsection (5), he may, within thirty days of the date of such order, make an application to such authority, as may be notified in this behalf by the Central Government in the Official Gazette (hereinafter in this section referred to as the notified authority), stating therein the reasons for such objection and requesting for appropriate relief in the matter. (12) On receipt of the application under sub-section (10) the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain filed a writ petition challenging the second order. The High Court held that the Income-tax Officer had no jurisdiction to pass that order beyond the period prescribed in section 132(5) and set aside the order. The High Court directed the return of 114 silver bars. The Supreme Court has held, inter alia, that the order made in pursuance of a direction given under section 132(2) or by a court in writ proceedings was not subject to the limitations prescribed under section 132(5). The Supreme Court observed--See [1974] 96 ITR 390, 394, 395 : " Even if the period of time fixed under section 132(5) is held to be mandatory that was satisfied when the first order was made. Thereafter, if any direction is given under section 132(12) or by a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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