Calcutta H.C : Learned counsel on behalf of the petitioner contends that s. 263 applies only in respect of an assessment made by the ITO.

High Court Of Calcutta

Keshab Narayan Banerjee vs. CIT & ORS.

Sections 117, 132(5), 132(11), 263, Art. 226

Dilip Kumar Seth, J.

C.R. No. 12627 of 1982

5th July, 2001

JUDGMENT

DILIP KUMAR SETH, J.:

In this writ petition, the petitioner has challenged a notice contained in annexure E to the writ petition at p 57. The said notice was issued under s. 263 of the IT Act, 1961. Learned counsel on behalf of the petitioner contends that s. 263 applies only in respect of an assessment made by the ITO. But it does not apply to any other order which is not related to an assessment and is carried on by an authority other than the ITO. He then contends that s. 132(5) empowers such officers who are above ITOs and that under sub-s. (11) of s. 132 appeal is provided. In the present case, before s. 263 was resorted to, an appeal was already preferred. Therefore, until the appeal is decided, s. 263 cannot be resorted to. He then contends that s. 263 cannot be resorted to during the pendency of a proceeding under s. 132, sub-s. (11). Therefore, the said notice should be quashed.

2. Learned counsel for the respondents-IT authorities, on the other hand, contends that the expression used in s. 263 is clear and unambiguous. It does not qualify any proceedings. On the other hand, it provides that power can be exercised by the CIT in respect of any proceedings under the Act. The reference to the ITO mentioned in the said provision relates to the IT authorities as mentioned in s. 117 of the said Act which includes all authorities including the ITO. Sec. 263 relates to revision of assessment. Under s. 132(5) the authorities empowered under s. 132 is supposed to make an assessment. For the purpose of s. 263 he is the AO assessing the undisclosed income. Therefore, the application of s. 263 cannot be excluded in a proceeding under s. 132(5). He then contends that the pendency of the proceeding under sub-s. (11) of s. 132 is not a bar to exercise of jurisdiction under s. 263. Both can be proceeded with together. Over and above, he submits that even if s. 263 is resorted to, the assessee is given an opportunity, in which he can very well raise his objection as was raised in his application under sub-s. (11). Therefore, the petitioner will not suffer any prejudice. His last contention is that the petitioner has come at a stage when the notice was issued. Therefore, the writ petition was premature and as such the same should be dismissed and all interim orders should be discharged.

3. I have heard learned counsel for the parties at length. Sec. 132(5) provides as follows : “(5) Where any money, bullion, jewellery or other valuable article or thing (hereafter in this section and in ss. 132A and 132B referred to as the assets) is seized under sub-s. (1) or sub-s. (1A), the ITO, after affording a reasonable opportunity to the person concerned of being heard and making such enquiry as may be prescribed, shall, within ninety days of the seizure, make an order, with the previous approval of the IAC,— (i) estimating the undisclosed income (including the income from the undisclosed property) in a summary manner to the best of his judgment on the basis of such materials as are available with him ; (ii) calculating the amount of tax on the income so estimated in accordance with the provisions of the Indian IT Act, 1922 (11 of 1922), or this Act ; (iia) determining the amount of interest payable and the amount of penalty imposable in accordance with the provisions of the Indian IT Act, 1922 (11 of 1922), or this Act, as if the order had been the order of regular assessment ; (iii) specifying the amount that will be required to satisfy any existing liability under this Act and any one or more of the Acts specified in cl. (a) of sub-s. (1) of s. 230A in respect of which such person is in default or is deemed to be in default, and retain in his custody such assets or part thereof as are in his opinion sufficient to satisfy the aggregate of the amounts referred to in cls. (ii), (iia) and (iii) and forthwith release the remaining portion, if any, of the assets to the person from whose custody they were seized : Provided that if, after taking into account the materials available with him, the ITO is of the view that it is not possible to ascertain to which particular previous year or years such income or any part thereof relates, he may calculate the tax on such income or part, as the case may be, as if such income or part were the total income chargeable to tax at the rates in force in the financial year in which the assets were seized and may also determine the interest or penalty, if any, payable or imposable accordingly: Provided further that where a person has paid or made satisfactory arrangements for payment of all the amounts referred to in cls. (ii), (iia) and (iii) or any part thereof, the ITO may, with the previous approval of the CIT, release the assets or such part thereof as he may deem fit in the circumstances of the case.”

4. Underhe said provision the officer authorised under sub-s. (1) of s. 132 is empowered to undertake exercise of the authority conferred under sub-s. (5) which includes assessment or estimate of the income and the tax on such income. Thus while exercising the jurisdiction under sub-s. (5) of s. 132, the authority mentioned in sub-s. (1) of s. 132 performs the function of assessment of income and the tax on such income. Therefore, the same is a proceeding of assessment and is definitely a proceeding under the IT Act. Thus it satisfies the test of “any proceeding” under the Act. Since proceeding has not been qualified in s. 263 it cannot exclude any proceeding and cannot be confined only to mean a proceeding for assessment by the ITO. The expression “ITO” under s. 263 shall include any officer empowered to assess any nature of the proceeding under the Act. The expression ITO has been defined in cl. (25) of s. 2 which means a person appointed to be an ITO under s. 117. Sec. 117 provides for appointment of different authorities under the IT Act which runs as follows: “117. Appointment of IT authorities.—(1) The Central Government may appoint as many Directors of Inspection, CITs, CIT(A’s), Addl. CITs, Appellate or IACs of IT and ITOs of Class I service, as it thinks fit. (2) The CIT may, subject to the rules and orders of the Central Government regulating the conditions of service of persons in public services and posts, appoint as many ITOs of Class II Service and as many Inspectors of IT as may be sanctioned by the Central Government. (3) Subject to the rules and orders of the Central Government regulating the conditions of service of persons in public services and posts, an IT authority may appoint such executive or ministerial staff as may be necessary to assist it in the execution of its functions.” The authorities in sub-s. (1) include an ITO. A reference made to a particular officer is to be treated as ejusdum generis which includes such officers who are empowered to make assessment in respect of the income and tax. Therefore, the application of s. 263 cannot be excluded in respect of a person mentioned in s. 132 of the said Act.

5. So far as the contention that during the pendency of the proceeding under sub-s. (11) of s. 132, s. 263 cannot be resorted to, the same can be averred from sub-s. (11) of s. 132 provides as follows : “(11) If any person objects for any reason to an order made under sub-s. (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.”

6. The provision of s. 263 is the power of revision as is prescribed in the said section which provides as follows : “263. Revision of orders prejudicial to Revenue.—(1) The CIT may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the ITO is erroneous insofar 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 assessment, or cancelling the assessment and directing a fresh assessment. (2) No order shall be made under sub-s. (1)— (a) to revise an order of reassessment made under s. 147, or (b) after the expiry of two years from the date of the order sought to be revised. (3) Notwithstanding anything contained in sub-s. (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 Tribunal, the High Court or the Supreme Court.”

7. The revisional power is in respect of any objection raised under sub-s. (11) of s. 132 is to be decided by the same authority who is empowered to exercise the power under s. 263. Therefore, the petitioner, in reply to his show cause could take this very ground, and may also pray that his objection may be decided together. At the same time, in order to oppose the said proceeding under s. 263 an opportunity is given. Then he can take the ground of pendency of the proceeding under sub-s. (11) as ground of objection to the proceeding under s. 263. Therefore, there is nothing which will prejudice the petitioner so far as his right is concerned with regard to the objection which he wants to put through in his application under sub-s. (11).

8. This petition has been moved at the very initial stage as soon the notice was issued; and the stay was obtained. It seems that it is premature. In view of that it is not maintainable as held above. The petitioner will not suffer any prejudice. If he participates in the proceeding he will be entitled to take all the points. Be that as it may, objection to the assessment made under sub-s. (5) of s. 132 of the IT Act can very well be challenged even in the proceeding under s. 263. In either case, the CIT has to refer the matter back to the AO for fresh assessment both under sub-s. (11) of s. 132 or under s. 263, as the case may be. The petitioner may take some opportunity which he could expect if his application under s. 132(11) is allowed. Thus, I do not find any reason to interfere. This petition, therefore, fails and is, accordingly, dismissed.

There will be no order as to costs.

All interim orders shall stand vacated.

[Citation : 252 ITR 888]

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