Law: Income Tax Act, 1961

Section: 264,264(4)(c),264(1)

Income-tax--Revision---Powers of CIT under S.264---Assessment order subject-matter of appeal to CIT (Appeals)---Commissioner not empowered to revise under S.264 such assessment order---Principle of constructive res judicata---Indian Civil Procedure Code, 1908, S.11, Expln. IV; 0.2, R.2---Indian Income Tax Act, 1961, S.264(4)(c). Clause (c) of subsection (4) of section 264 of the Income Tax Act, 1961, is self-explanatory. Even on a plain reading thereof, it is clear that where an order has been made the subject-matter of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal, the Commissioner, is not empowered to revise such an order. The word "order" used in clause (c) of subsection (4) denotes an order in its entirety and not piecemeal. It is immaterial that only a part of the order is challenged. The provision is very clear and provides an express bar and prohibition against exercising revision jurisdiction under section 264, in a case where the order has already been made the subject-matter of an appeal. The scheme of providing an express bar and prohibition in entertaining revision applications where the order had already been made the subject-matter of appeal is also consistent with the basic principles of the Civil Procedure Code, 1908, as relating to civil litigation. Under the procedural law also, multiplicity of litigation in respect of the same cause of action is deprecated and discouraged. Such bar is contained in Order 2, rule 2 of the Civil Procedure Code, and if the plaintiff omits to 'agitate or intentionally relinquishes any portion of the claim arising from the same cause of action, he shall be precluded from agitating in another litigation in another proceeding, the portion omitted or relinquished. Even remotely the provisions of section 11 of the Civil Procedure Code, 1908, can also lend support to the express prohibition contained in section 264(4)(c) of the Income- Tax Act, 1961. Section 11 of the Civil Procedure Code deals with principles of res judicata. It provides an express bar to try the same issue which was directly or substantially in issue between the same parties in a former proceeding. This rule casts an obligation…

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