P L D 1964 Supreme Court 410 (PLP)

(c) an Inspecting Assistant Commissioner under section 34‑A may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him. (2) The Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under section 31, direct the Income‑tax Officer to appeal to the Appellate Tribunal against such order, and such appeal may be made (within sixty days of the date on which the order is communicated to the Commissioner by the Appellate Assistant Commissioner). (2‑A) The Tribunal may admit an appeal after the expiry of the sixty days referred to in subsections (1) and (2) if it is satisfied that there was sufficient cause for not presenting it within that period. (3) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall except in the case of an appeal referred to in sub section (2), be accompanied by a fee of one hundred rupees. (3‑A) The Appellate Tribunal may, before disposing of any appeal, call for such particulars as it may require respecting the matters arising in the appeal or cause further inquiry to be made by the Income‑tax Officer. (4) (a) The Appellate Tribunal shall give both parties to the appeal an opportunity of being heard. (b) If the Appellate Tribunal is not satisfied that the assessment or order which is the subject of appeal ought to be interfered with, it shall reject the appeal and the assessment or order shall stand good. (c) If the Appellate Tribunal is satisfied that an assessment which is the subject of appeal ought to be reduced or annulled it shall reduce or annul the assessment accordingly. (d) If the Appellate Tribunal is satisfied that an assessment which is the subject of appeal is insufficient, it shall increase the assessment accordingly. (e) If the Appellate Tribunal is satisfied that an assessment which is the subject of appeal ought to be set aside, it shall set aside the assessment and direct the income‑tax Officer to make a fresh assessment. (f) As respect any other matter, if the Appellate Tribunal is satisfied that an order which is the subject of appeal ought to be interfered with, it shall cancel or vary the order accord ingly and shall issue such consequential directions, as the case may require. In the case of an order imposing a penalty the power to vary the order shall include the power to enhance the penalty. (g) The Appellate Tribunal shall communicate its order on the appeal to the assessee and to the Commissioner. (5) Whereas the result of an appeal any change is the assessment of a firm or association of per sons or a new assessment of a firm or association of a persons is ordered to be made, the Appellate Tribunal may authorise the income-tax Officer to amend accordingly any assessment made on any partner of the firm or any member of the association. (6) Save as provided in section 66 orders passed by the Appellate Tribunal on appeal shall be final." Section 33‑A runs 33‑A.‑(1) The Commissioner may of his own motion call for the record of any proceeding under this Act in which an order bas been passed by any authority subordinate to him and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order there on, not being an order prejudicial to the assessee, as he thinks fit. Provided that the Commissioner shall not revise any order under this subsection if‑ (a) where an appeal against the order lies to the Appellate Assistant Commissioner or to the Appellate Tribunal, the time within which such appeal may be made has not expired; or (b) the order is pending on an appeal before the Appellate Assistant Commissioner or has been made the subject of an appeal to the Appellate Tribunal ; or (c) the order has been made more than one year previously Provided further that the Commissioner may, for reasons to be recorded by him in writing, also revise under this sub section any order made more than one year previously. (2) The Commissioner may, on application by an assessee for revision of an order under this Act passed by any author ity subordinate to the Commissioner, made within one year from the date of the order (or within such further period as the Commissioner may consider fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period), call for the record of the proceeding in which such order was passed, and on receipt of the record may make such inquiry or cause such inquiry to be made, and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit Provided that the Commissioner shall not revise any order under this subsection if‑ (a) where an appeal against the order lies to the Appellate Assistant Commissioner 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 got waived his right of appeal; or (b) where an appeal against the order has been made to the Appellate Assistant Commissioner, the appeal is pending before the Appellate Assistant Commissioner; or (c) the order has been made the subject of an appeal to the Appellate Tribunal ; Provided further that an order by the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the assessee. (3) Every application by an assessee under subsection (2) shall be accompanied by a fee of twenty‑five rupees." It will be observed that the provision in its original as well as in its amended form gives the Commissioner power to interfere with an order passed by any authority subordinate to him. As it has been conceded on behalf of the Commissioner of Income‑tax that the proceedings under section 33 were judicial in nature and it is only in respect of section 33‑A that proceed ings are alleged to be administrative it will be proper to state the points of difference between the two provisions. Under section 33 the Commissioner could even pass an order against the assessee after notice to him but under section 33‑A he cannot pass an order against the assessee at all. In section 33 there was no provision for an application by the assessee while the amended provision enables the assessee to put in an applic ation on payment of Rs. 25 as court‑fees. In section 33 there was no condition as to time or as to the pendency of any appeal. The sole basis of the argument put forward on behalf of the Commissioner of Income‑tax as to the distinction in the nature of the proceedings under sections 33 and 33‑A is the fact that under section 3j‑A no orders can be made against the assessee. Having regard to the nature of the jurisdiction that is conferred by section 33‑A it is not quite easy to appreciate how an order under this section could be an administrative order. Admittedly the order with which the Commissioner of Income tax interferes with when exercising jurisdiction under section 33‑A, that is, the order of assessment by the Income‑tax Officer or the appellate order of the Appellate Assistant Commissioner, is a judicial order. That a judicial order should be set aside by means of an administrative order is a concept as yet unknown to our system of jurisprudence. Administrative orders may be se aside by judicial orders, but no provision of any law has been cited of a reverse case. The Commissioner of Income‑tax while dealing with an application under section 33‑A has to base his decision on conclusions of fact or law which conclusions (when they interfere with the order of the subordinate authority) override similar conclusions reached by the Income‑tax Officer or the Appellate Assistant Commissioner and it is not easy to contend that a conclusion of law or fact not reached in a judicial manner can supersede by one reached in a judicial manner. The remedy under section 33‑A is alternative to an appeal before the Appellate Assistant Commissioner or the Appellate Tribunal and should be similar in nature. In a case where the assessee acquires the right to file an application under section 33‑A by waiving right of appeal it will not be reasonable that he should not get the same remedy from the Commissioner of Income‑tax as he could have had from the appellate authority. By the amendment a right has been given to the assessee to file an application. He has to pay for this application a court‑fee of Rs. 25 which would mean that he has a right to get a decision from the Income tax Commissioner on the points which he has raised. The commissioner can make an inquiry or cause an inquiry to be made before he passes an order. There is nothing in the Income‑tax Act to show that this inquiry which affects valuable rights has not to be judicial. The argument put forward on behalf R of the Commissioner of Income‑tax namely that because an order cannot be passed against the assessee therefore the proceedings are not judicial is not supported by any authority or any princi ple of interpretation. The fact that a Tribunal cannot pass an order of a particular kind does not necessarily involve that the proceedings which would otherwise be judicial cease to be so. The High Court sitting in revision under the Criminal Procedure Code against an order of acquittal cannot pass an order of conviction. It is not necessary to discuss the matter at any great length because of what is contained in section 37 of the Income‑tax Act. This section provides that the Commissioner of Income tax shall for the purpose of Chapter 1V (section 33‑A occurs in B Chapter IV) have the powers of a Court and that "any pro ceedings before a Commissioner under this chapter shall be a judicial proceeding". Section 37 appears not to have been brought to the notice of the High Court in the present case. In view of the wording of this section it is not necessary to refer to cases cited at the bar by the appellant which do not refer to this section. Those cases are generally based on an obser vation made by the Privy Council in Commissioner of Income‑tax v. Tribune Trust, Lahore (P L D 1947 P C 247). The questions which we are now con sidering did not arise in that case. An observation had however been made while dealing with section 33 that this section was "intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action upon such a review". The mere fact that the officers dealing with a particular matter were administrative officers does not necessarily mean that their acts were not judicial. The question before the Privy Council being a different one the observations have to be read in the context in which they appear. On behalf of the appellant it is urged that even if the order passed under section 33‑A be a judicial order it does not necessarily imply that notice to the respondent of the hearing of the application under section 33‑A was essential. Reliance is placed m this connection on section 31 of the Income‑tax Act which provides for notice of the hearing of the appeal to the appellant. It is urged that the existence of a provision for notice in section 31 and its absence in section 33 should lead to the inference that notice of the hearing of the application under section 33‑A to the applicant was not needed. The logical result of the acceptance of this argument should be that notice of hearing should never be necessary unless it is specially pro vided for because if this argument be valid by comparison of two sections of the statute it should also be valid by comparison of provisions in different statutes on the ground that the Legislature when it intends notice makes an express provision. We do not think the mere absence of a provision as to notice can override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of bearing to that party. A reference to provisions in other statutes will show that the existence of a provision of notice as to one proceeding has not been accepted as an argument against the need of notice in the case of a proceeding with respect to which there is no express provision of notice. Under the Criminal Procedure Code there is a distinct provision in the case of an appeal for notice of hearing to the appellant, but there is no such provision in the case of a revision petition in the High Court. It cannot be urged, however, that the right of hearing in a revision petition has thereby been excluded. In the Civil Procedure Code similarly there is a provision in Order XLI, rule 22 directing notice of the hearing of appeal to be given to the appellant and there is no such provision with respect to a proceeding under section 115, C. P. C., yet it cannot be said that it is not necessary to hear the parties affected in a proceeding under section 115, C. P. C. The fact that the proceedings are judicial or quasi‑judicial in nature is sufficient to entitle a party to a hearing in the absence of a specific provision to the contrary. At the same time it should be pointed out that the right to be heard is not confined to proceedings which are judicial in form. As has been held by this Court in The Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak (P L D 1959 S C (Pak.) 45) the maxim "no man shall be condemned unheard" is not confined to Courts but extend to all proceedings, by whomsoever held which may affect the person or property or other right of the parties concerned in the dispute, and the maxim will apply with no less force to proceedings which affect liability to pay a tax. We hold that an opportunity of hearing was essential and in its absence the order of the Commissioner of Income‑tax is void. These two appeals are dismissed but there is no order as to costs. K. B. A. Appeals dismissed.