N.seetharaman v. The Assistant Commissioner Of Income Tax,Circle-Ii, Madurai-625 002

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.11.2007CORAM:THE HONOURABLE MR. JUSTICE S.MANIKUMARW.P.No.12060 of 2004W.P.M.P.No.14100 of 2004 N.Seetharaman ... Petitioner Vs. The Assistant Commissioner of Income Tax,Circle-II, Madurai-625 002. ... Respondent Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ ofCertiorarified Mandamus, to call for the records on the file of the respondent in the matter ofassessment of the petitioner in File No.S-7028/Cir.II/Mdu for the Block Assessment years 1989-90 to1999-2000, quash that order dated nil purporting to be a reassessment consequent to the directionsin order under Section 264 dated 01.11.2002 and consequently to direct the respondent to restorethe matter to the Assessing Officer with a direction to confine himself to the order under Section 264of the Commissioner of Income Tax-I, Madurai referred to above. For Petitioner : Mr.R.SrinivasanFor Respondent : Mr.Narayanasamy O R D E R The petitioner has filed present Writ Petition to quash the File No.S-7028/Cir.II/Mdu for the BlockAssessment years 1989-90 to 1999-2000 and consequently direct the respondent to restore thematter to the Assessing Officer with a direction to confine himself to the order under Section 264 ofthe Commissioner of Income Tax-I, Madurai. 2. Brief facts leading to the Writ Petition are as follows: The petitioner is carrying on a small-scale business in making Gold jewellary out of old ornamentsand the same is being sold in Trivandram. The making charges in the State of Kerala arecomparatively higher than Madurai. His sons are also doing the same business and help him in histrade. They are assessed to income tax separately in Madurai. The petitioner is an assessee from theassessment year 1993-94 and presently assessed by the Assistant Commissioner of Income-Tax,Circle-II, Madurai. On 18.11.1998, when the petitioner was staying in a lodge in Trivandram, thelocal police apprehended him and found in his possession jewellery, weighing 781.3 grams and cashof Rs.40,800/-. On intimation by the police, the Director of Income Tax (Investigation), Cochin, gavea requisition under Section 132-A of the Income Tax Act, 1961 to the Police Department and theabove said jewellary and cash were seized by the Income Tax Department. Pursuant to the noticeunder Section 158(B)(C) of the Act, the petitioner filed a return of income in Form 2B on 25.08.1999,admitting a total income of Rs.6,000/- per month and requested that the tax payable be adjusted outof the seized cash. 3. The petitioner further submitted that being a small trader, he could not maintain any regularbooks of accounts. He further submitted that his sons are also petty traders and they do notmaintain any accounts and they are filing their returns of income separately. It is the further case ofthe petitioner that based on the cash flow and the advise of his auditor, the petitioner voluntarilysubmitted his returns on 31.12.1997, for the assessment years 1993-94 and 1998-99, before actionwas taken under Section 132-A of the Act referred to above. 3. The petitioner further submitted that being a small trader, he could not maintain any regularbooks of accounts. He further submitted that his sons are also petty traders and they do notmaintain any accounts and they are filing their returns of income separately. It is the further case ofthe petitioner that based on the cash flow and the advise of his auditor, the petitioner voluntarilysubmitted his returns on 31.12.1997, for the assessment years 1993-94 and 1998-99, before actionwas taken under Section 132-A of the Act referred to above. 4. Referring to Section 158(B)(b) of the Income Tax Act, the petitioner has submitted that theincome, which he had disclosed before the action under Section 132-A of the Act, cannot fall withinthe definition of "undisclosed income". The Assessing Officer, rejecting the above said contention ofthe petitioner, by his order dated 31.03.2000, made an assessment computing the undisclosedincome of Rs.2,79,087/-, including the income of his sons on the ground that no books of accountswere maintained by them. Aggrieved by the same, the petitioner has filed the Revision Petition on26.03.2001 under Section 264 of the Act to the Commissioner of Income Tax-I, Madurai, bywithdrawing the appeal so as to get the seized jewels. The Revisional Authority, by order dated01.11.2002, found that the submissions of the petitioner were not appreciated in proper perspectiveby the Assessing Officer and therefore, with a view to re-examine the matter, directed the assessingOfficer to adjudicate the matter afresh, after taking into account the assessee's version. Pursuant tothe revisional order, the assessing officer went on to consider the other issues for the first time andcompleted the assessment on a higher total income of Rs.6,55,540/-. The above said order wasreceived by the assessee/petitioner on 18.03.2004 and the same is challenged in this Writ Petition. 5. Mr.R.Srinivasan, learned counsel for the petitioner submitted that the revisional powers underSection 264 clearly provide that the Commissioner can pass such order, not being prejudicial to theassessee and when the Commissioner himself is prohibited by passing an order prejudicial to theassessee under Section 264 of the Income Tax act, the assessing officer has exceeded in itsjurisdiction by considering certain issues in the remand proceedings, which were not the subjectmatter of the original assessment order and therefore, the assessment order is per se illegal andliable to be set aside. He further submitted that the revisional order itself, having been passed afterthe limitation prescribed under Section 264 of the Income Tax Act, the consequential order of theassessing officer, enhancing the total income, prejudicial to the assessee, is patently withoutjurisdiction and therefore, the order needs correction in exercise of the powers under Article 226 ofthe Constitution of India. 6. On the issue of scope and powers of the revisional authority under the Income Tax Act, learnedcounsel for the petitioner relied on a decision in CIT v. D.N.Dosani reported in 280 I.T.R 275 (Guj).To support his contention that the error of jurisdiction can be corrected under Article 226 of theConstitution of India, he cited decisions in Fenner (India) Ltd., v. Dy.C.I.T., reported in 241 I.T.R.672, and Whirlpool Corporation v. Registrar of Trade Marks, Mumbai reported in AIR 1999 SC 22. 7. On the other hand, Mr.S.Narayanasamy, learned counsel for the Revenue submitted that thescope of the revision under the Income Tax Act is wide open and it is not restricted and therefore,the assessing officer can re-do the assessment afresh, taking into consideration of the materialsgathered during enquiry. He further submitted that as against the order of assessing officer, analternative remedy of appeal is provided under the Statute before the Commissioner (Appeals) andtherefore, the present Writ Petition is not maintainable in law. 7. On the other hand, Mr.S.Narayanasamy, learned counsel for the Revenue submitted that thescope of the revision under the Income Tax Act is wide open and it is not restricted and therefore,the assessing officer can re-do the assessment afresh, taking into consideration of the materialsgathered during enquiry. He further submitted that as against the order of assessing officer, analternative remedy of appeal is provided under the Statute before the Commissioner (Appeals) andtherefore, the present Writ Petition is not maintainable in law. 8. Learned counsel for the respondent placed reliance on the decision in C.I.T. v. Geo Indus. &Insecticides Pvt. Ltd., (Mad) reported in 1998 I.T.R., 541, and submitted that the powers of theIncome Tax Officer to make assessment is not confined or restricted to the directions given by theCommissioner of Income Tax and it is open to the Assessing Officer to examine the matter afresh forthe purpose of proper assessment of income. 9. Heard both sides. 10. On consideration of the materials and the returns submitted by the petitioner and his sons, theassessing officer by his order dated 31.03.2000, estimated an "undisclosed income" for the blockperiod between 1989-90 to 1999-2000. The submissions of the assessee before the RevisionalAuthority are extracted hereunder: 8. Learned counsel for the respondent placed reliance on the decision in C.I.T. v. Geo Indus. &Insecticides Pvt. Ltd., (Mad) reported in 1998 I.T.R., 541, and submitted that the powers of theIncome Tax Officer to make assessment is not confined or restricted to the directions given by theCommissioner of Income Tax and it is open to the Assessing Officer to examine the matter afresh forthe purpose of proper assessment of income. 9. Heard both sides. 10. On consideration of the materials and the returns submitted by the petitioner and his sons, theassessing officer by his order dated 31.03.2000, estimated an "undisclosed income" for the blockperiod between 1989-90 to 1999-2000. The submissions of the assessee before the RevisionalAuthority are extracted hereunder: "The Income Tax Practitioner mentioned that the subject matter of block assessment was addition ofthe value of gold jewellery weighing 781.340 grams and cash of Rs.40,800/- both requisitioned underSection 132 A from the Police Authorities. The Act defines in Section 158B(b) that "undisclosedincome" includes any money, bullion, jewellery or other valuable articles or thing or any incomebased on any entry in the books of account or other documents or transactions, where such money,bullion, jewellery, valuable article, thing, entry in the books of accounts or other document ortransaction represents wholly or partly income or property which has not been or would not havebeen disclosed for the purposes of this Act. The manner in which the undisclosed income has to becomputed has been provided in Section 158B(b) of the Act. Section 132A contains provisions relatingto powers to requisition books of accounts etc. The authority conferred by Section 132 A of the Actcan be exercised only when the specified authority, in consequence of the information in hispossession, has reason to believe that the circumstances enumerated in Clauses (a) or (b) or ) of sub-section 1 of Section 132A exist. The authority can be exercised only under circumstances where 'anyassets either wholly or partly income or property which has not been or would not have been,disclosed for the purposes of the Indian Income Tax Act from any person from whose possession orcontrol such assets have been taken into custody by any officer or authority under any other law forthe time being in force' � (Clause ) of Section 132A. The applicant submits that none of thisconditions (a) to (c) existed in applicant's case. Since, the applicant did not possess any money,bullion, jewellary or other valuable article or thing which could represent any undisclosed income orproperty, it was impossible that the authorised officer would have 'reason to believe' to act for thepurposes of authorising proceedings U/s.132A of the Act. It is clear from the proceedings conductedduring the course of seizure that the authorised officer, while examining on oath U/s.132(4) of theAct had not recorded any information to the effect the assets seized represented undisclosedincome. The block assessment order also clearly indicates that the seized assets did not representundisclosed income of the applicant. Hence, the proceedings initiated by issue of notice U/s.158B(c)of the Act ought to have been dropped by the AC as there was no case for the department to makeassessment. There can be no inference of income for the purpose of block assessment, if theevidence relating to them is not found during such. The other additions can be made only in regularassessment and the pretext of the Block Assessment cannot lead to inclusion of the income, whichwas not discovered during search," 11. The Revisional Authority, in his order dated 01.11.2002, observed that the above mentionedissues raised by the assessee were not examined by the assessing officer during the blockassessment proceedings and that the assessing officer was guided by the presumption that since theassessee had not maintained books of accounts and furnished only cash flow statement, the assetsseized viz., jewellery weighing 781.340 grams and cash of Rs.40,800/- were not disclosed. TheRevisional Authority has further observed that the assessing officer did not examine the assessee'srepeated statement that the above said assets belonged to the petitioner's family and they form partof the stock in trade of the assessee's family business. With the above specific issues, the RevisionalAuthority directed the Assessing Officer to adjudicate the matter afresh, after taking into accountthe assesse's version and giving him an opportunity of being heard before deciding the issue. 12. When the directions of the Revisional Authority are specific, the Assessing officer proceeded onthe footing that the directions of the Revisional Authority to consider the issue afresh would meanthat all the issues emanating from the information collected by him, have to be considered as a whole in order to arrive at a total undisclosed income, assessable for the block period. He furtherproceeded on the footing that even though all the materials were available with him, certain sourceof income was lost sight of in computation of the total undisclosed income and therefore, examinedthe assessment afresh for the block assessment period and arrived at a total undisclosed income atRs.2,79,087/-. 13. The relevant Sections 263 and 264 of the Income Tax Act dealing with revisional powers of theCommissioner of Income Tax are extracted for adjudication of the issue as to whether the assessingofficer is empowered to pass an order prejudicial to the interest of the assessee, in a proceedingemanating under revisional jurisdiction of the Commissioner of Income Tax under Section 264 of theAct. "263. Revision of orders prejudicial to Revenue:- (1) The Commissioner may call for and examine the records of any proceeding under this Act, and if he considers that any order passed therein by theAssessing Officer is erroneous in so far 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 suchinquiry 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 anddirecting a fresh assessment." "264. Revision of other orders:- (1) In the case of any order other than an order to which Section 263applies passed by an authority subordinate to him, the commissioner may, either of his own motionor on an application by the assessee for revision, call for the record of any proceeding under this Actin which any such order has been passed and may make such inquiry or cause such inquiry to bemade and, subject to the provisions of this Act, may pass such order thereon, not being an orderprejudical to the assessee, as he thinks fit. (2) The commissioner shall not of his own motion revise any order under this Section if the order hasbeen made more than one year previsously. (3) In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him orthe date on which he otherwise came to know of it, whichever is earlier: Provided that the Commissioner may, if he is satisfied that the assessee was prevented by sufficientcause from making the application within that period, admit an application made after the expiry ofthat period. (4) The Commissioner shall not revise any order under this section in the following cases- (a) where an appeal against the order lies to the Deputy Commissioner (Appeals) or to the (2) The commissioner shall not of his own motion revise any order under this Section if the order hasbeen made more than one year previsously. (3) In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him orthe date on which he otherwise came to know of it, whichever is earlier: Provided that the Commissioner may, if he is satisfied that the assessee was prevented by sufficientcause from making the application within that period, admit an application made after the expiry ofthat period. (4) The Commissioner shall not revise any order under this section in the following cases- (a) where an appeal against the order lies to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals or to the Appellate Tribunal but has not been and the time within which suchappeal may be made has not expired, or, in the case of an appeal to the Commissioner (Appeals) orto the Appellate Tribunal, the assessee has not waived his right of appeal; or (b) where the order is pending on an appeal before the Deputy Commissioner (Appeals); or ( c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to theAppellate Tribunal. (5) Every application by an assessee for revision under this section shall be accompanied by a fee oftwenty-five rupees." 14. In Commissioner of Income Tax v. D.N.Dosani reported in 2006 ITR 275, a Division Bench of theGujarat High Court, while considering the scope and power of the Assessing officer, held that theassessing Officer has no jurisdiction to substitute the opinion of the Commissioner and expand thescope of assessment, while answering the reference, the Division Bench held as follows: "9. A bare perusal of the aforesaid provision makes it clear that, before the CIT can pass any order,he has to give the assessee an opportunity of being heard and thereafter record, at least prima facie,that the order made by the assessing officer is erroneous insofar as it is prejudicial to the interestsof the revenue. The requirement of giving the assessee an opportunity of hearing is, for the simple reason that the assessee may be able to refute the belief of the CIT, which might have been formedon examination of the record of any proceeding under the Act, that is to say, assessee may be in aposition to point out that the assessment order is neither erroneous nor prejudicial to the interests ofthe revenue, or even if it is erroneous, it is not prejudicial to the interests of the revenue, or it maynot be erroneous, even if it is prejudicial to the interests of the revenue. Therefore, the moment therevenue's contention is accepted that in the fresh assessment, the assessing officer is entitled toexamine items which did not form part of Section 263 proceedings, the statutory requirement offraming an order under Section 263 of the Act after giving the assessee an opportunity of beingheard, stands obliterated or is made redundant. This interpretation goes against clear unambiguouslanguage in which the section is couched. 10. The provision also requires the CIT to record that an order passed by the assessing officer iserroneous and prejudicial to the interests of the revenue. The satisfaction of these two pre-requisiteconditions is a must before assumption of the jurisdiction under Section 263 of the Act. This legalposition is well established and bears no repetition. Hence, the CIT can exercise jurisdiction onlyafter establishing on record that the assessment order is erroneous and prejudicial to the interestsof the revenue and for this purpose, he has to show from the record as to what portion of theassessment order is erroneous and prejudicial to the interests of the revenue. In a given case, theentire order may be erroneous and prejudicial to the interests of the revenue, but the record ofSection 263 proceedings must reflect that. In the instant case, and it is not disputed, the CIT hasissued show cause notice only on two grounds, and those are the only grounds processed by the CITwhile framing the order under Section 263 of the Act. The operative portion of the order, therefore,cannot be read, as submitted by the revenue de hors the contents of the show cause notice and theorder. 11. Considering the issue from a slightly different angle. The assessee was called upon by CIT totender explanation qua two items mentioned in the show cause notice. On a plain reading of Section263(1) of the Act, it is apparent that the CIT could not have treated any further item or part of theassessment order as being erroneous and prejudicial to the interests of the revenue without givingthe assessee an opportunity of being heard. Therefore, what the CIT himself could not have done,cannot be permitted to be done by the assessing officer while giving effect to the order underSection 263 of the Act. It is necessary to bear in mind that powers of revision can be exercised onlyby the CIT and therefore, the assessing officer cannot, under the guise of framing fresh assessment,exercise the said powers in relation to other items forming part of the assessment record. Theprovision which permits exercise of jurisdiction under Section 263 of the Act in the first instancerequires the CIT to call for and examine the record of any proceeding under the Act. The logicalpresumption is, therefore, that before issuance of show cause notice under Section 263 of the Act,the CIT has examined the record, and found prima facie that the assessment order is erroneous andprejudicial to the interests of the revenue only in relation to the items mentioned in the show causenotice. For the assessing officer, to substitute his opinion in place of the opinion of CIT is notenvisaged by the provision and therefore also, action of the assessing officer in expanding scope ofconsequential assessments cannot be upheld. 12. The Scheme of the Act has provided different powers to different authorities and these arerequired to be exercised after satisfying the pre-requisite conditions and jurisdictional facts. Theassessing officer can disturb / re-open a finalized assessment by invoking his powers either underSection 154 or under Section 147 of the Act, provided he can show that the necessary requirementsare fulfilled. If, what revenue contends today, is accepted, these and other such provisions whichempower different authorities to exercise jurisdiction at different point of time in distinct settingswould be rendered otiose and that can never be the legislative intent. It is almost akin to providingseparate keys for separate locked doors and the person wanting to open a particular door is requiredto apply the correct key which matches the concerned lock. Therefore, in proceedings, to give effectto order under Section 263 of the Act, the assessing officer cannot be permitted to undertake anexercise not warranted by the legislative scheme." 15. In Commissioner of Income Tax v. GEO Industries and Insecticides (I) Pvt. Ltd., reported in 234ITR 541, the Commissioner of Income Tax initiated suo-moto revision proceedings under Section 263on the ground that the losses of the cashew department and the losses of the hessian departmentcould not be set off against the profits of the insecticides department for and from the assessmentyear 1974-75. The Income-tax Officer thereafter made a fresh assessment under Section 143 of theAct in pursuance of the directions of the Commissioner and accepted the claim of the assessee thateven ignoring the cashew department loss, there was available loss in the pesticides department tobe set off against the net profit. However, the assessee made a claim for deduction of Rs.79,000/-being damages paid which was disallowed for the assessment year 1976-77 on the ground that it didnot represent the loss of that year but relate to the assessment year prior to 1976-77. The Income-tax Officer rejected the claim of the assessee on the ground that the Commissioner of Income-tax inthe revisional order set aside the order of assessment only for a specific purpose of excluding theloss from the cashew department and it was not open to the assessee to make a claim for thededuction of Rs.79,000/- in the fresh assessment made on the basis of the directions of theCommissioner of Income-tax. On appeal, the Commissioner of Income-tax (Appeals) held that therewas nothing in law preventing the Income-tax Office from going through the question of set off ofRs.79,000/- and hence directed the Income-tax Officer to examine the matter on merits for allowanceof the damages paid. On further appeal, the Tribunal held that when the Income-tax Officer makes afresh assessment, he has all the powers at the time of making assessment in terms of Section 143(3)of the Act and the Commissioner of Income-tax (Appeal) was justified in directing the Income-taxOfficer to consider the claim of the assessee for deduction of the sum of Rs.79,000/- in the freshassessment made on the basis of the directions of the Commissioner of Income-tax. 16. In the above reported judgment, the Commissioner of Income Tax considered that the orderpassed by the assessing officer was erroneous in so far as it was prejudicial to the interest of theRevenue and directed the Income Tax officer to make fresh assessment in accordance with law so asto exclusde the losses of the Cashew department and of the hessian department (if any) after givingadequate opportunity to the assessee company. It was a case where the Revenue established on thebasis of the record that the assessment order was erroneous and prejudicial to the interests of theRevenue and directed the Income Tax Officer to make a fresh assessment in accordance with lawand the order in the revision reflected that the set off loss from the defunct cashewnut businessagainst the profit of the business in the manufacture and sale of pesticides was erroneous. In thecase on hand, it is not the case of the revenue before the revisional authority that the originalassessment order was erroneous and prejudicial to the interests to the revenue nor there is anyfinding by the revisional authority to redo the entire exercise in that direction. Therefore, thedecision relied on by the counsel for the revenue is not applicable to the facts of the present writpetition. 17. Perusal of the revisional order demonstrates that the revisional authority has directed theassessing officer to adjudicate specific issues, addressed and examined by the revisional authority.As rightly contended by the learned counsel for the petitioner, if the revisional authority hadintended that the entire assessment has to be re done, then he would issued appropriate directionsfollowing the mandatory provision in Section 263 of the Income Tax Act. When the directions areprecise, the assessing officer cannot expand the revisional order. 17. Perusal of the revisional order demonstrates that the revisional authority has directed theassessing officer to adjudicate specific issues, addressed and examined by the revisional authority.As rightly contended by the learned counsel for the petitioner, if the revisional authority hadintended that the entire assessment has to be re done, then he would issued appropriate directionsfollowing the mandatory provision in Section 263 of the Income Tax Act. When the directions areprecise, the assessing officer cannot expand the revisional order. 19. It is not in dispute that the Commissioner may in his exercise of his revisional power, modify orreverse the order in favour of the assessee. The revisional authority can also cancel the assessmentorder for a fresh assessment, but the order under this Section should not be prejudicial to theassessee. Therefore, when the Revisional Authority passes an order not being prejudicial to theassessee, the consequential duty that is cast on the assessing authority is to confine himself to thespecific directions contained in the order. When an assessee is aggrieved by an order of theassessing officer and files a revision petition before the competent authority and if the resultant order under Section 264 of the Act, made in the revision, puts the assesse in a position, worse thanthat in which he was placed before, it is clearly prejudicial to the assessee. When the revisionalauthority himself lacks the jurisdiction to reassess the proceedings and pass orders adverse to theinterest of the assessee, the assessing officer, cannot exceed in his jurisdiction and redo theassessment afresh. When the powers of the revisional authority are limited under the scheme of theAct, the assessment made by the respondent, by assuming more powers than that of the revisionalauthority, is patently illegal and without jurisdiction. At best, the assessing officer could confinehimself only to the limited extent of scrutiny of cash flow statement and valuation statement. 20. As regards the plea of alternative remedy, this Court in Fenner (India) Ltd., v. Dy.C.I.T., reportedin 241 I.T.R. 672, at page 682, held that, "As the error here is one of jurisdiction it is not necessary for the assessee to have recourse to theremedies by way of appeal, revision etc. It is well settled that when a jurisdictional error is broughtto the notice of this court such errors are capable of being corrected by this Court in exercise of theCourt's powers under article 226 of the Constitution of India. The Supreme Court in the case of CITv. Progressive Engineering [1993] 200 ITR 231 (sic), held that when all the relevant facts werebefore the Court and the law is clear on the subject, it is the duty of the High Court to interfere. Thatwas also a case where the proceedings were sought to be initiated against the assessee underSection 147 of the Act." 21. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai reported in AIR 1999 SC 22, theSupreme Court at Paragraphs 20 and 21, held as follows: "20. Much water has since flown beneath the bridge, but there has been no corrosive effect on thesedecisions which, though old, continue to hold the field with the result that law as to be jurisdiction ofthe High Court in entertaining a writ petition under Article 226 of the Constitution. Inspite of thealternative statutory remedies, is not affected, specially in a case where the authority against whomthe writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction withoutany legal foundation. 21. That being so, the High Court was not justified in dismissing the Writ Petition at the initial stagewithout examining the contention that the show cause notice issued to the appellant was whollywithout jurisdiction and that the Registar, in the circumstances of the case, was not justified inacting as the "TRIBUNAL"." 21. That being so, the High Court was not justified in dismissing the Writ Petition at the initial stagewithout examining the contention that the show cause notice issued to the appellant was whollywithout jurisdiction and that the Registar, in the circumstances of the case, was not justified inacting as the "TRIBUNAL"." 22. As the assessing officer has clearly transgressed his powers beyond the scope of Section 264 ofthe Act, driving the petitioner to seek recourse to file an appeal before the Commissioner, is notjustifiable in the interest of the justice. Therefore, the Writ Petition is maintainable in law. 23. In view of the above, the impugned order passed by the assessing officer is set aside and thematter is remitted back to the assessing officer to confine himself to the limited question addressedby the Revisional Authority and pass orders in accordance with law, after giving adequateopportunity to the assessee of being heard. 24. In the result, the Writ Petition is allowed. No costs. Consequently, connected MiscellaneousPetition is also closed. 29.11.2007skmS. MANIKUMAR, J.skm ToThe Assistant Commissioner of Income Tax, W.P.No.12060 OF 2004