Commissioner of Income Tax Vs. Hotel Rama Pvt. Ltd. - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 216: [r.b.naik,j] alteration of charge - held, charge could be altered at any time before judgment. -- section 244 & chapter xix (b):examination of party prosecuting case and witnesses before framing charge in cases instituted otherwise than on police report - held, the provisions as contained in section 244 mandates that a magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. as such, the discretion is vested with the complainant to produce the evidence in support of his case. it cannot be said that even if the averments made in the complaint alone disclose sufficient grounds to frame charge, the magistrate is precluded from framing such charge, which the complaint discloses, though the complainant may not produce any other evidence other than the complaint in support of the prosecution caseorder--applicability of explanation (c) to s. 263 ratio :it is clear from the section 263(1) read with clause (c) of the explanation that if an appeal filed against an order of the assessing officer had already been dispossed of prior to 1-6-1988, then irrespective of the fact whether any particular aspect of the orders appealed against was decided or not, the entire original orders had merged with the appellate order and since in the present case, the appeal preferred before the commissioner (appeals) was disposed of prior to 1-6-1988, the assessment orders merged entirety with the appellate order and thus nothing was left for the commissioner to examine and interfere within its revisional jurisdiction under section 263 of the act. held :in substance, for a valid exercise of revisional jurisdiction by the commissioner under section 263(1) read with clause (c) of the explanation thereto, the order in the concerned appeal should have been passed on or after 1-6-1988, and, (ii) the commissioner should have initiated the proceedings on or after the said date. the appeal preferred before the commissioner (appeals) was disposed of on 27-6-1986, and the revisional jurisdiction under section 263(1) of the act has been invoked by the commissioner on 17-2-1987. in this view of the matter, since the assessment orders had already merged in entirety with the appellate order before the coming into force of clause (c) of the explanation under section 263 of the act, nothing was left for the commissioner to examine and interfere within its revisional jurisdiction under section 263. accordingly, the first question is answered against the revenue. a. y. :1982-83 to 1984-85 dt. judg. :2-9-1997income tax act 1961 s.32income tax act 1961 s.263(1)(c)

Judgment:
ORDER

--Applicability of Explanation (c) to s. 263

Ratio :

It is clear from the section 263(1) read with clause (c) of the Explanation that if an appeal filed against an order of the assessing officer had already been dispossed of prior to 1-6-1988, then irrespective of the fact whether any particular aspect of the orders appealed against was decided or not, the entire original orders had merged with the appellate order and since in the present case, the appeal preferred before the Commissioner (Appeals) was disposed of prior to 1-6-1988, the assessment orders merged entirety with the appellate order and thus nothing was left for the Commissioner to examine and interfere within its revisional jurisdiction under section 263 of the Act.

Held :

In substance, for a valid exercise of revisional jurisdiction by the Commissioner under section 263(1) read with clause (c) of the Explanation thereto, the order in the concerned appeal should have been passed on or after 1-6-1988, and, (ii) the Commissioner should have initiated the proceedings on or after the said date. The appeal preferred before the Commissioner (Appeals) was disposed of on 27-6-1986, and the revisional jurisdiction under section 263(1) of the Act has been invoked by the Commissioner on 17-2-1987. In this view of the matter, since the assessment orders had already merged in entirety with the appellate order before the coming into force of clause (c) of the Explanation under section 263 of the Act, nothing was left for the Commissioner to examine and interfere within its revisional jurisdiction under section 263. Accordingly, the first question is answered against the revenue.

A. Y. :

1982-83 to 1984-85

Dt. Judg. :

2-9-1997

Income Tax Act 1961 s.32

Income Tax Act 1961 s.263(1)(c)