TMI Blog1975 (6) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... es for a sum of Rs. 2,05,000 ; out of which a sum of Rs. 10,000 had to be deducted for the value of four routes as fixed in 1957-58 assessment. The sale proceeds of the vehicles alone was thus worked out at Rs. 1,95,000. From this was deducted a sum of Rs. 83,919 representing the cost of two new vehicles and the balance sale price was Rs. 1,11,081. After allowing deduction for the written down value, the profit under section 41(2) was computed at Rs. 65,077 and the income from the vehicles at Rs. 15,470, to make up a total income of Rs. 80,547. This was rounded up to Rs. 80,550 and on this income the assessee was assessed. The assessee preferred a revision to the Commissioner under section 264 of the Income-tax Act, 1961. This was disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax liability arrived at by the Commissioner was favourable to the assessee, and not prejudicial to him. In that view the learned judge dismissed the writ petition. Sections 263 and 264(1) of the Income-tax Act, 1961, read as follows : "263. (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 inquiry as he deems, necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Explanation, which reads as follows : "Explanation 1.--An order by the Commissioner declining to interfere shall, for the purposes of this section, be deemed not to be an order prejudicial to the assessee." It is well-known that in the prior Act of 1922 there was originally no provision enabling the revenue to file appeals against assessment orders prejudicial to its interests. The omission was repaired by the enactment of section 33 more or less in the same terms as section 263(1) of the 1961 Act which empowered the Commissioner to revise orders passed by subordinate authorities and pass such orders as he deems fit, "not being an order prejudicial to the assessee". Later, section 33A provided for revision and passing of orders not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he cannot enlarge by taking a course which is on his part purely voluntary. This view of the section is confirmed by the exception. For it is proper that, where the Commissioner does make an order which worsens the position of the assessee, the latter should have a right of appeal, since against that order he has no other right. It is further confirmed by the proviso to section 66(2) which limits a reference from an order under section 33 to cases where the question of law arises out of that order itself and excludes it where the question of law arises out of a previous order under section 31 or section 32 which is revised under section 33. In the case in which a reference is permitted, there is a new point of law which could not be oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect of the tax distributed among the newly included heads of income was less onerous to the assessee. Giving the matter our careful attention, we feel that there is no warrant for such a conclusion. It is true that the Commissioner on revision brought to book the tax on capital gains which had escaped taxation at the hands of the Income-tax Officer. But even after such recomputation the ultimate incidence of tax liability on the assessee was lesser than what it was prior to the order passed on revision. As noticed earlier, the tax liability was reduced from one on an income of Rs. 80,558 to one on an income of Rs. 70,160. On the analogy of the Privy Council decision in the Tribune Trust's case, we cannot hold the order revised to be err ..... X X X X Extracts X X X X X X X X Extracts X X X X
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