1. ORDER Abrar Hossain Naqvi, Judicial Member.-These are two departmental appeals relating to assessm ent years 1975-76 and 1976-77 against the order of the A AC dated 24-4-1979. The assessee is an AOP and deals in iron sheets. The department is aggrieved in these appeals against reduction of sales estimates made by the AAC. The declared and assessed position is as under: 1975- 76 Net income declared. Rs. 6,500/- Sales estimated. Rs. 4,60,000/- G.P. Rate applied. 6.25% The AAC reduced the sale to Rs. 4,00,000/- 1976- 77 Net income declared. Rs. 7,000/- Sales estimated. Rs. 6,15.000/- G.P. Rate applied. 6.25% The AAC reduced the sales to Rs. 5,30,000/- A preliminary objection was raised by the A.R. That against the impugned order of the AAC the assessee had filed a revision petition before the C1T, 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 petition, before the CIT were filed by the assessee on 23-5- 1979 while the appeals were filed by the department before 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 33A the appeals were already pending before the Tribunal. The lst proviso to Section 33A(2) is reproduced below: "Provided that the Commissioner shall not revise any order under this sub-section:-
(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;
(e) the order has been made the subject of an appeal to the Appellate Tribunal'.
2. 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 sub-section. The A.R. contended the 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 33A(2) if any of the conditions mentioned in the provisos (a) (b) and (c) is present. The order of the C.1. J. was without jurisdiction and therefore has to be ignored.
3. However notwithstanding the tact that the CIT had no power of revision and hi3 order \yas;Without jurisdiction the fact remains that the appeals have been filed by' the 1TO before the Tribunal on the direction of the CIT while the CIT himself had further reduced the sale estimate. The DR submitted that the CIT who directed the 1TO to file appeals and the CIT 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 Commissioners. The law speaks of a Commissioner both under Section 33A and under Section 33(2). Under the underpier Section CIT is empowered to pass orders in revisions while under the'' letter Section the CIT is empowered to direct the 1TO to appeal tb 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."
4. 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 AAC. In these circumstances while the order of the CIT 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 AAC when the Commissioner himself thought that the sales estimated by the AAC were still excessive- Both the appeals stand disposed of as above.
5. A.A. Zuberi, Accountant 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 AAC and that in Revision (under Section 33-A) the Commissioner himself granted reduction in the estimate of Sales fixed by the learned AAC.
6. However, with all respect to the learned J.M, I do not subscribe to his|D view that the order dated 18- 7-1979 passed in Revision by the CIT is 'in both in respect of appeal by the assessee or by the department. However, I consider 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 33A of the Act. I, therefore, concur with the conclusion by my learned brother and dismiss both the appeals, as proposed by him. [Pages 12-13] D.
7. Humayun Akhtar, D.R. for the Appellant.
8. Ilyas Zafar, Advocate for the Respondent.
9. Date of hearing: 26-1-1981.
10. Abrar Hussain Naqvi, Judicial Member.-These are two departmental appeals relating to assessm ent years 1975-76 and 1976-77 against the order of the AAC dated 24-4-1979. The assessee is an AOP and deals in iron sheets. The department is aggrieved in these appeals against reduction of sales estimates made by the AAC. The declared and assessed position is as under: 1975- 76 Net income declared. Rs. 6,500/- Sales estimated. Rs. 4,60,000/- G.P. Rate applied. 6.25% The AAC reduced the sale to Rs. 4,00,000/- 1976- 77 Net income declared. Rs. 7,000/- Sales estimated. Rs. 6,15,000/- G.P. Rate applied. 6.25% The AAC reduced the sales to Rs. 5,30,000/- A preliminary objection was raised by the A.R. That against the impugned order of the AAC the assessee had filed a revision petition before the C1T, 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 petition, before the CIT were filed by the assessee on 23-5- 1979 while the appeals were filed by the department before 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 33A the appeals were already pending before the Tribunal. The lst proviso to Section 33A(2) is reproduced below: "Provided that the Commissioner shall not revise any order under this sub-section:-
(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 art appeal against the order has been made to the A. A.C. The appeal is pending before the A.A-C- or;
(e) the order has been made the subject of an appeal to the Appellate Tribunal.
11. 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 sub-section. The A.R. contended the 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 33A(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.
12. However notwithstanding the fact that the CIT had no power of revision and his order was without jurisdiction the fact remains that the appeals have been filed by the 1TO before the Tribunal on the direction of the CIT while the CIT himself had further reduced the sale estimate. The DR submitted that the CIT who directed the 1TO to the appeals and the CIT 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 Commissioners. The law speaks of a Commissioner both under Section 33A and under Section 33(2). Under the former Section CIT is empowered to pass orders in revisions while under the letter Section the CIT is empowered to direct the 1TO 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."
13. 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 AAC. In these circumstances while the order of the CIT 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 AAC when the Commissioner himself thought that the sales estimated by the AAC were still excessive. Both the appeals stand disposed of as above.
14. A.A. Zuberi, Accountant 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 AAC and that in Revision (under Section 33-A) the Commissioner himself granted reduction in the estimate of Sales fixed by the leamed AAC.
15. However, with all respect to the learned J.M, I do not subscribe to his[D view that the order dated 18-7-1979 passed in Revision by the CIT is 'in-J valid and inoperative' and that the bar in clause 'c' of the first proviso to sub-section (2) of Section 33-A is operative both in respect of appeal by the assessee or by the Department. However, I consider 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 CIT in his order of Revision under Section 33A of the Act. I, therefore, concur with the conclusion by my learned Brother and dismiss both the appeals, as proposed by him..