TMI Blog1976 (12) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... er under section 263 of the Act of 1961 and directed the Income-tax Officer to levy interest under the proviso to section 139(1) which he had omitted to do at the time of making the assessment. The Income-tax Officer in accordance with the Commissioner's direction levied the interest of Rs. 6,046. An appeal was preferred on the 15th December, 1969, to the Appellate Assistant Commissioner. On behalf of the assessee it was urged before the Appellate Assistant Commissioner that interest under section 139(1) was not levied at the time of the original assessment by the Income-tax Officer. The levy of interest under section 139(1) was a part and parcel of the regular assessment proceedings. It should normally be done before the time limit for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utation in consequence of or to give effect to any finding or direction contained, inter alia, in an order under section 263. We now come to the relevant provisions under section 263. They are as follows : " 263. Revision of orders prejudicial to revenue.--(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 the circumstances of the case justify, including an order enhancing or modifyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termining the exact sum which the assessee has to pay. The expression " pass such order thereon " in section 263 postulates the order under section 143(3). Reliance was placed on the Supreme Court's decision in State of Orissa v. Debaki Debi [1964] 15 STC 153 (SC), on the applicability of limitation provided in the second proviso to section 12(6) of the Orissa Sales Tax Act, 1947. The provisions of the statute which the Supreme Court considered in this case were not the same as the provisions we have to consider in the instant reference. It seems to us that this case would not be of any assistance in answering the question referred to us. The fourth contention of Mr. Mukherjee is that both the sections, namely, section 263 and section 153 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period prescribed by the other section. It has further to be remembered that the Commissioner's power can be exercised only after the Income-tax Officer has passed an order. All that one has to see is whether the Commissioner has made an order within the period prescribed by section 263 and in accordance with the provision thereof. The court would not be justified in imposing additional limitations on the Commissioner. We may in this connection refer to other instances of specified periods in the Act itself. For example, section 154 deals with rectification of mistake. And under sub-section (7) of section 154 no mistake can be rectified save as otherwise provided in section 155 or section 186(4) after the expiry of four years from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner in exercising power under section 263 enhances or modifies an assessment, the Income-tax Officer's order would merge in the Commissioner's order. But even in that case the period of limitation of the Commissioner's order would be the one prescribed by sub-section (2)(b) of section 263. In the premises our answer to the question is that the assessment order dated the 25th September, 1967, did not merge with the order of the Commissioner of Income-tax dated the 19th September, 1969. The Commissioner's order dated the 19th September, 1969, is not barred by limitation. The answer, therefore, is in the negative and in favour of the revenue. There will be no order as to costs. DEB J.--I agree. - - TaxTMI - TMITax - Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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