LAWS(ALL)-1983-2-24

RADHEY SHYAM Vs. COMMISSIONER OF INCOME TAX

Decided On February 14, 1983
RADHEY SHYAM Appellant
V/S
COMMISSIONER OF INCOME-TAX Respondents

JUDGEMENT

(1.) BY this petition filed under Article 226 of the Constitution of India, the principal relief sought is the quashing of the order dated 31st October, 1979, passed by the Commissioner dismissing a revision filed under Section 264 of I.T. Act, against the order dated 28th March, 1978, passed by the ITO disallowing registration to the petitioner under Section 185(5), as infructuous because the impugned order had been the subject of an appeal to the Commissioner (Appeals) even though it was dismissed on 12th September, 1979, as barred by time.

(2.) IN order to assail the correctness of this order the petitioner has taken recourse to arguments both on merits and tecnicalities. It is urged that the revision having been fixed for hearing on 12th November, 1979, the Commissioner committed an error apparent on the face of the record in dismissing it on 31st October, 1979, on communication of written reply to the query made by the Commissioner as to whether the petitioner had filed an appeal. We, however, do not consider it necessary to examine this aspect as we are satisfied that the other argument advanced, that the Commissioner acted against law in refusing to entertain revision on an erroneous construction of Sub-clause (c) of Sub-section (4) of Section 264 of the Act, appears to be well founded.

(3.) WE may now consider if the dismissal of an appeal on the ground of limitation results in the order having been made the subject of an appeal. Before answering this we may point out that where Legislature confers more than one remedy then the provisions have to be construed in a manner in which the intention of the Legislature is carried into effect and not so as to frustrate it. Moreover, a provision excluding jurisdiction must be construed strictly. The apparent intention of Section 264 appears to he to enable an assessee to get the correctness of an order passed by the ITO examined either by the Commissioner (Appeals) under Section 246 or by the Commissioner under Section 264. That is, at least one higher authority may examine it on merits. If Clause (c) is construed in the manner as it has been done by the Commissioner it would result in negativing the remedy of an assessee which would be contrary to the intention of the Legislature.