TMI Blog1975 (12) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1970, assessment of the petitioner-company was completed in the status of a company in which it was held the public were not substantially interested. The Income-tax Officer accordingly applied the rate of tax applicable to such a company to the petitioner. The petitioner on the 7th of April, 1970, made an application under section 154 of the Income-tax Act, 1961, requesting the Income-tax Officer to rectify the assessment order by recomputing the tax on the basis that the petitioner was a company in which the public were substantially interested. The petitioner also on the 21st of April, 1970, filed an appeal before the Appellate Assistant Commissioner contending, inter alia, that the petitioner-company being one in which the public were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the 7th of April, 1972, and on the 10th of April, 1972, moved this application and obtained the rule nisi. Two points were urged in support of the application. It was contended, firstly, that in the facts and circumstances of the case the original order having been amended on the 12th of May, 1970, by an order under section 154 rectifying the original order what was in operation thereafter was the original order as rectified. When the Appellate Assistant Commissioner disposed of the appeal on the 3rd of February, 1972, the order which was the subject-matter of the appeal was the order as amended. Therefore, the Appellate Assistant Commissioner having disposed of the appeal the original order as rectified became merged in the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order sought to be revised. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, the High Court or the Supreme Court. Explanation.--In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. " The section gives the Commissioner the power to call for and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, depends on the nature of the appellate or revisional order in each case and the scope of the statutory provision conferring the appellate or revisional jurisdiction. Reliance in this connection may be placed on the observations of the Supreme Court in the case of State of Madras v. Madurai Mills Co. Ltd. [1967] 1 SCR 732, 736; 19 STC 144 (SC) and in the case of Commissioner of Income-tax v. Amritlal Bhogilal Co. [1958] 34 ITR 130 (SC). In the instant case whether the petitioner was a company in which the public were substantially interested or not is a point which could have been the subject-matter of appeal and decision by the Appellate Assistant Commissioner under clause (c) of section 246 of the Income-tax Act, 1961. In the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Officer to go back on that position would deprive the assessee of a forum of appeal before the Appellate Assistant Commissioner. The second ground of attack was, as I mentioned before, that this order was passed at the suggestion of the audit department of the revenue and not by the Additional Commissioner in exercise of his quasi-judicial discretion. I have noticed the terms of section 263 of the Act which empowers the Commissioner to call for examination of the record and thereafter to make an order. In this case the Commissioner purported to exercise the power at the suggestion of the audit department. This position would be clear if one refers to the averment made in paragraph 4(d) of the affidavit-in-opposition, by one Madan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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