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----S. 33‑A(2), Proviso, cl. (c)‑Appeal filed ‑and pending before Tribunal ‑Income‑tax Commissioner, held, not competent to revise order appealed against‑Clause (c), held further, not limited to appeals filed by assessee but equally applicable to appeals filed by Department.

(b) Income‑tax Act (XI of 1922)‑--

--‑‑Ss. 33‑A & 33(2)‑Income‑tax Commissioner revising order passed by A.. A. C. and reducing sales estimates notwithstanding appeals having been filed against same assessment and still pending adjudication ‑ Income‑tax Commissioner, in circumstances, held, estopped from contesting estimates of sales made by A. A. C. Department, having waived its right to contest order of A. A. C., appeals dismissed.

Humayun Akhtar for Appellant.

Ilyas Zafar for Respondent.

Date of hearing : 26th January, 1981.

ABRAR HUSSAIN NAQVI (MEMBER).‑

These are two departmental appeals relating to assessment years 1975‑75 and 1976‑77 against the order of the A. A. C., dated 24‑4‑1979 The assessee is an A. O. R. and deals in iron sheets. The Department is aggrieved in then‑. appeals against reduction of sales estimates made by the A. A. C. The declared and assessed position is as under :

A preliminary objection was raised by the A. R. that against the impugned order of the A. A. C. the assessee had filed a revision petition before the C. I. T., who, vide his order dated 18‑7‑1979, had further reduced the sales to Rs. 3,75,000 and Rs. 4,50,000 respectively for the years 1975‑76 and 1976‑77. It was stated that the revision petitions, before the C. I. T. were filed by the assessee on 23‑5‑1979 while the appeals were filed by. the Department before the Tribunal on 4‑7‑1979 the order of the C. I. T. is dated 18‑7‑1979. This means that when the order was passed by the C. I. T. under section 33‑A the appeals were already pending before the Tribunal. The Ist proviso to section 33‑A(2) is reproduced below:

"Provided that the Commissioner shall not revise any order under this subsection:‑

(a) Where an. appeal against the order lies to the A. A. C. or to the Appellate Tribunal but has not been made, the time within which such appeal may be made has not expired, or, in the case of an appeal to the Appellate Tribunal, the .assessee has not waived right of appeal ; or

(b) where an appeal against the order has been made to the A, A. C. the appeal is pending before the A. A. C. ; or

(c) the order has been made the subject of an appeal to the Appellate Tribunal.

Clause (c) of the above proviso makes it clear that during the pendency of appeal before the Tribunal the C. I. T. is not competent to revise any order under the aforesaid subsection. The A. R. contended that clause (c) speaks of an appeal by the assessee. It is difficult to read the words 'by an assessee (between the words an appeal' and 'to the Appellate Tribunal'. This proviso has limited the powers of the C. I. T. The C. I. T. cannot exercise power under section 33‑A(2) if any of the conditions mentioned in the provisos (a), (b) and (c) is present. The order of the C. I. T. was without jurisdiction and therefore has to be ignored.

However notwithstanding the fact that the C. I. T. had no power of revision and his order was without jurisdiction the fact remains that the appeals have been filed by the I. T. O. before the Tribunal on the direction of the C. I. T. while the C. I. T. himself had further reduced the sale estimates. The D. R. submitted that ,the C. I. T. who directed the I. T. O. to file appeals and the C. I. T. Revision are two separate persons. So far as the law is concerned this is irrelevant. This is entirely internal arrangement of the Department as to how the work is divided between various Commis sioners. The law speaks of a Commissioner both under section 33‑A and under section 33(2). Under the former section C. I. T. is empowered to pass orders in revisions while under the letter section the C. I. T. is empowered to direct the I. T. O. to appeal to the Tribunal. The word 'Commissioner' has been defined by the Income‑tax Act as under

" Commissioner' means, the person appointed. to be the Commissioner of Income‑tax under section 5.

The law is not concerned with the incumbents on the post of Commissioners but it talks of only Commissioner. In these circumstances when the Commissioner has himself reduced the sales estimates notwithstanding the illegality of his order, he is estopped to contest the estimate of sales made by the A. A. C. In these circumstances while the order of the C. I. T. dated 18‑7‑1979 is held to be invalid and inoperative, these appeals are also dismissed as the Department has waived its right to contest the order of the A. A. C. when the Commissioner himself thought that the sale estimated by the A. A. C. were still excessive: Both the appeals stand disposed of as above.

A. A. ZUBERI (MEMBER).‑

I am in full agreement with my learned Brother, the Judicial Member, as far as dismissal of appeal is concerned on the ground that the Department had waived its right to contest the order of the learned A. A. C. and that in Revision (under section 33‑A) the Commissioner himself granted reduction in the estimate of sales fixed by the learned A. A. C.

However, with all respect to the learned J. M., I do not subscribe to his view that the order dated 18‑7‑1979 passed in Revision by the C. I. T. is 'invalid and inoperative' and that the bar in clause (c) of the first proviso to subsection (2) of section 33‑A is operative both in respect of appeal by the assessee or by the Department. However, I considered that it is not necessary to give a considered opinion with regard to the above‑mentioned issues because I find that the fate of the present appeals would in no way be affected. These stand dismissed on the point of waiver by the Department and relief granted by the C. I. T. in his order of Revision under section 33‑A of the Act. I, therefore, concur with the conclusion by my learned brother and dismiss both the appeals, as proposed by him.

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