ivil Appeal Nos
171 172 of 1973
From the Judgment and Order dated 9 3 1972 of the Calcutta High Court in IT Reference No 11767
D V Patel section P Nayar and Miss A Subhashini for the Appellant
B B Ahuja Amicus Curiae for the Respondent
TULZAPURKAR J
These two appeals by certificate raise an important question as regards the proper construction of section 33B of the Indian Income Tax Act 1922 with particular bearing on the scope of sub section
4 thereof and the effect of sub section
2 b on the sub section
The facts giving rise to the aforesaid question may briefly be stated The assessment years involved are 1957 58 and 1958 59 corresponding to the accounting years ending March 31 1957 and March 31 1958 respectively
On or about August 5 1960 the respondent assessee submitted voluntary returns inter alia for the said two assessment years alongwith a declaration dated August 8 1960
The assessment for these years were completed on August 12 1960 by the Income Tax Officer E  Ward District II1 Calcutta on total incomes of Rs 7000 and 7500 respectively the same having been made in the status of unregistered firm consisting of three partners namely 273 Asha Devi Vaid Santosh Devi Vaid and Sugni Devi Vaid with equal shares
On August 2 1962 the Commissioner of Income Tax issued a notice to show cause why the said assessments should not be cancelled under section 33B of the Act as he felt that the completed assessments were erroneous as being prejudicial to the interests of the revenue and that the Income Tax Officer E  Ward District II1 Calcutta had no territorial jurisdiction over the case of the assessee
The notice was served on the assessee on August 3 1962 and the hearing was fixed by the Commissioner for August 6 1962
On the ground that none appeared and that there was no application for adjournment the Commissioner passed his order under section 33B ex parte on that date
By his said order the Commissioner cancelled the assessments made by the Income Tax Officer on August 12 1960 on three grounds a that some of the partners were minors and were not competent to enter into any partnership agreement with the result that the status of unregistered firm assigned to the assesse by the Income Tax Officer was clearly wrong and as such the assessments deserved to be cancelled b that the books of account were unreliable and they were not properly examined by the Income Tax Officer with the result that the assessments made were prejudicial to the interests of the revenue and c that the Income Tax Officer concerned had no territorial jurisdiction over the case which fell within the jurisdiction of Income Tax Officer District IIIII Calcutta and directed the ITO having proper jurisdiction to make fresh assessments after examining the record of the assesse in accordance with law
In the appeals preferred to the Appellate Tribunal under section 33B3 the respondent assessee challenged the said order of the Commissioner on various grounds
The Tribunal negativing all other contentions of the respondent assessee came to the conclusion that on merits the facts justified the assumption of jurisdiction under section 33B by the Commissioner but held that the Commissioner had not conformed to the requirements of natural justice by putting to the respondent assessee what case it had to meet and by giving due opportunity for explaining the same
The Tribunal noted that the Commissioner had disposed of the matter at 1130 AM when none appeared on behalf of the respondent assessee while the notice served upon the latter permitted filing of objections at any time during the course of August 6 1962 and objections had been filed by the respondent assessee later in the day
The Tribunal therefore allowed the appeals vacated the Commissioner s order dated August 6 1962 and remanded the case to him with the 274 direction to dispose it of afresh after giving due opportunity to the respondent assessee
Feeling aggrieved by the Tribunal s aforesaid order dated July 5 1965 the appellant sought to refer a set of six questions of law said to arise out of the said order to the Calcutta High Court but the Tribunal referred the following two questions only for the opinion of the High Court 1
Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the assumption of jurisdiction by the Commissioner under section 33B of the Income Tax Act was valid in law 2
Whether on the facts and in the circumstances of the case the Tribunal acted properly by vacating the order of the Commissioner under section 33B of the said Act and in directing him to dispose of the proceedings under the said section afresh after giving due opportunity to the assessee The High Court disposed of the Reference IT Reference No 117 of 1967 by its judgment dated March 9 1972 whereby it answered the first question in the affirmative against the assessee that is to say on merits it held that the assessments made by the Income Tax Officer required revision at the hands by the Commissioner
As regards the second question the High Court was of the view that it comprised two aspects one relating to the vacating of the Commissioner s order and the other relating to the giving of a direction to him to dispose of the case under section 33B afresh after giving due opportunity to the assessee and the High Court held that in exercise of its appellate powers the Tribunal acted properly in vacating or cancelling the Commissioner s order but did not act properly in directing him to dispose of the case afresh under section 33B1 because the period of limitation of two years prescribed under section 332b for him to act under section 33B1 had expired and answered the question accordingly ie in the affirmative on the first aspect and in the negative on the second aspect
In doing so the High Court held that the provision of sub section 2b was absolute and covered even a revisional order of the Commissioner passed in pursuance of a direction given by any appellate authority and relied in that behalf on the aspect that unlike 2nd proviso to sec
343 there was no provision removing or relaxing the bar of limitation on the power of the Commissioner under section 33B2 b 
The High Court preferred the view of the Assam High Court in CIT vs Sabitri Debi 275 Agarwalla1 to the view of the Bombay High Court in CIT vs Kishoresingh Kalyansinh Solanki2
The Revenue has come up in appeal to this Court challenging the aforesaid view of the High Court
Since the question relates to the proper construction of section 33B of the Act with particular bearing on the scope of the appellate powers of the Tribunal under sub section
4 thereof and the effect of sub section
2 b thereon it will be desirable to note the material provisions of section 33B
Under sub section
1 power has been conferred upon the Commissioner to revise Income Tax Officer s orders but the exercise of such power is regulated by the two conditions mentioned therein namely a he must consider the order sought to be revised to be erroneous as being prejudicial to the interests of the revenue and b he must give an opportunity to the assessee of being heard before revising it
Sub section
2 b prescribes a period of limitation in negative words by providing that no order shall be made under sub section
1 after the expiry of two years from the date of the order sought to be revised
 Sub section
3 confers on the assessee a right to prefer an appeal to the Appellate Tribunal against the Commissioner s order made under sub section
1 while sub section
4 indicates the powers of the Appellate Tribunal in dealing with such appeal by providing that such appeal shall be dealt with in the same manner as if it were an appeal under sub section
1 of section 33
Two things stand out clearly or a fair reading of the two concerned provisions namely sub section
2 b and sub section
The bar of limitation contained in sub s 2 b is on the Commissioner s power to pass revisional orders under sub section
1 and the same appears to be absolute in the sense that it applies to every order to be made under sub section
At the same time sub section
4 confers on the Appellate Tribunal very wide powers which it has while dealing with an appeal under section 331
In other words the Appellate Tribunal has power to pass such orders thereon ie on the appeal as it thinks fit
In Hukumchand Mills3 case this Court has explained that the word thereon restricts the jurisdiction of the Appellate Tribunal to the subject matter of the appeal which merely means that the Tribunal cannot adjudicate or give a finding on a question which is not in dispute and which does not form the subject matter of the appeal but the words pass such orders thereon as it thinks fit include all the powers except possibly the power of enhancement which are conferred on the Assistant Appellate Commissioner by section 31 and consequently the Tribunal has authority in exercise of its appellate powers to set aside the order appealed against and direct fresh assessment in the light of the observations made by it in its 276 judgment
In other words similar power is possessed by the Appellate Tribunal while dealing with the appeal under sub section 4 of section 33B
The question that arises for our consideration is whether such a direction to dispose of the case afresh can be given to the Commissioner by the Appellate Tribunal when the period of limitation prescribed under sub section
2 b has expired  In other words whether sub section 2 b of section 33B has the effect of attenuating or curtailing the appellate powers of the Tribunal under sub section
4  Counsel for the Revenue contended that it was a well settled principle that all the parts of a section or statute should be construed together and that every clause of a section should be construed with reference to the context and other clauses thereof so that the construction put on a particular provision makes a consistent enactment of the whole statute
He further urged that the object of conferring revisional power upon the Commissioner under section 33B1 obviously was to correct erroneous orders of Income Tax Officer in so far as they were prejudicial to the interests of the revenue and such object would be defeated if the bar of limitation contained in sub section
2b is held applicable to revisional orders passed by the Commissioner in pursuance of or in obedience to a direction given or order made by the Appellate Tribunal in appeal under section 33B4 or for that matter by the High Court or Supreme Court in case the matter is carried to those Courts
According to him it would be proper to construe the provision in sub section 2b as being applicable to suo motu revisional orders passed by the Commissioner under sub section
1 and not to orders passed by him in pursuance of a direction issued to him by the Tribunal in appeal
He urged that there was no reason why sub section
2 b should be regarded as having the effect of attenuating or curtailing the very wide appellate powers conferred upon the Tribunal
He further urged that no argument could be based on the absence of a provision similar to the 2nd proviso to section 343 in section 33B of the Act the support of his contention strong reliance was placed by him upon the Bombay High Court s decision in Solanki s case supra
On the other hand counsel for the assessee canvassed the High Court s view for our acceptance by pointing out that both sections 33B and 343 together with the second proviso were introduced in the Act by the same Amending Act 1948 but in section 33B no provision for removing or relaxing the bar of limitation contained in sub section
2b was made and hence it was not for the Court to supply a casus omissus
He also relied on the fact that in the 1961 Act the necessary provision has been enacted in section 2633 which also showed that in the absence of such provision in section 33B of the 1922 Act the bar of sub section
2 b was 277 applicable to every order of the Commissioner irrespective of whether it was made suo motu or in pursuance of a direction issued by the appellate authority
According to him since the bar of limitation contained in sub section
2 b of section 33B always operated for the benefit of the assessee as the same accorded finality to the assessment orders the appellate powers of the Tribunal under sub section
4 must be regarded as having been curtailed to the extent that the Tribunal cannot remand the case to the Commissioner for making fresh assessment if by then the limitation has expired
Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled
In regard to the former the following statement of law appears in Maxwell on Interpretation of Statutes 12th Edn at page 33 Omissions not to be inferred It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express
Lord Mersey said It is a strong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do  We are not entitled  said Lords Loreburn LC to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself  A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted and the omission in consequence to have been unintentional In regard to the latter principle the following statement of law appears in Maxwell at page 47 A statute is to be read as a whole It was resolved in the case of Lincoln College 1595 3 Co Rep 58b at p 59b that the good expositor of an Act of Parliament should make construction on all the parts together and not of one part only by itself  Every clause of a statute is to be construed with reference to the context and other clauses of the Act so as as far as possible to make a consistent enactment of the whole statute  Per Lord Davey in Canada Sugar Refining Co Ltd vs R  278 In other words under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute
This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature An intention to produce an unreasonable result said Danckwerts LJ in Artemiou vs Procopiou1 is not to be imputed to a statute if there is some other construction available
 Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational construction Per Lord Reid in Luke vs IRC 1968 AC 557 where at p 577 he also observed this is not a new problem though our standard of drafting is such that it rarely emerges
In the light of these principles we will have to construe sub section
2 b with reference to the context and other clauses of section 33B Section 33B was introduced in the Indian Income Tax Act 1922 by the Income Tax and Business Profit Tax Amendment Act 1948 with effect from March 30 1948 and the object of introducing the same was obviously to confer revisional powers upon the Commissioner to correct the erroneous orders of an Income Tax Officer in so far as they were prejudicial to the interests of the revenue
The language of the sub sec
1 clearly suggests that the said power was contemplated to be exercised suo motu by the Commissioner inasmuch as the opening words show that it was upto the Commissioner to call for and examine the record of any proceedings under the Act and on examination of the record if he were satisfied that any order passed by an Income Tax Officer was erroneous as being prejudicial to the interests of the revenue he could revise the same after giving an opportunity to the assessee of being heard
It is true that sub section
2 b thereof prescribed a period of limitation on his power by providing that no order shall be made under sub section
1 after the expiry of two years from the date of the order sought to be revised by the Commissioner and a literal construction of sub section
2 b also suggests that the bar of limitation imposed thereby was absolute in the sense that it applied to every kind of order to be made under sub section
1 and no distinction was made between a 279 suo motu order and an order that might be made by him pursuant to a direction given by any appellate or other higher authority but the question is whether such a literal construction should be accorded to that provision  As stated earlier sub section
3 conferred on an assessee a right to prefer an appeal to the Appellate Tribunal against the Commissioner s order made under sub section
1 and under sub section
4 the Tribunal had authority to deal with the impugned order of the Commissioner in such manner as it deemed fit in exercise of its appellate powers for instance it could confirm the impugned order it could annul that order it could after vacating it remand the case back to the Commissioner for making a fresh assessment in the light of the observations made by it in its judgment or it could after calling for a remand report rectify the erroneous order of the Income Tax Officer
Further there was no period prescribed within which an appeal against the impugned order of The Commissioner had to be disposed of by the Tribunal and in the normal course on rare occasions such appeals would have been heard and disposed of before the expiry of two years from the date of the Income Tax Officer s order which was regarded as erroneous by the Commissioner
More often than not such appeals would come up for hearing after the expiry of the said period of two years a fact fully known and within the contemplation of the Legislature when it introduced the section in the Act in 1948
In these circumstances did the Legislature intend to attenuate or curtail the appellate powers which it conferred on the Appellate Tribunal in very wide terms under sub section
4 by enacting sub section
2 b prescribing a time limit on the Commissioner s power to revise an erroneous order of the Income Tax Officer when the Commissioner was seeking to exercise the same not suo motu but in pursuance of or obedience to a direction from the Appellate authority  According to the construction contended for by the assesses and which found favour with the High Court the answer was in the affirmative because sub section
2 b on its literal construction was absolute
In our view such literal construction would lead to a manifest y absurd result because in a given case like the present one where the appellate authority Tribunal has found a the Income Tax Officer s order to be clearly erroneous as being prejudicial to the interests of the revenue and b the Commissioner s order unsustainable as being in violation of principles of natural justice how should the appellate authority exercise its appellate powers  obviously it could not withhold its hands and refuse to interfere with Commissioner s order altogether for that would amount to perpetuating the Commissioner s erroneous order nor could it merely cancel or set aside the Commissioner s wrong order without doing anything about the Income Tax Officer s order for
that would result in perpetuating the Income Tax 280 Officer s order which had been found to be manifestly erroneous as being prejudicial to the revenue
But such result would flow from the view taken by the High Court which has held that the Tribunal acted properly in vacating the Commissioner s order but did not act properly in directing him to dispose of the proceedings afresh after giving opportunity to the assesses
Such manifestly absurd result could never have been intended by the Legislature
Moreover it was fairly conceded by the counsel for the assesses before us that in exercise of its appellate powers it was open to the Tribunal itself to call for a remand report from either the Commissioner or the Income Tax Officer and rectify the Income Tax Officer s erroneous order after giving opportunity to the assesses and in doing so no question of limitation would arise
It was also not disputed by him that it was equally open to the Tribunal to set aside the Commissioner s order and remand the case directly to the Income Tax Officer giving the requisite direction to rectify his erroneous order and thereupon the Income Tax Officer could carry out the Tribunal s direction
for admittedly the bar of limitation under 1 sub section
2 b was only on the Commissioner s paver to make an assessment afresh and not on the Income Tax Officer
If this be the correct position then it is gravely anomalous that the Tribunal should not be in a position to set aside the Commissioner s order and remand the case back to the Commissioner for making a fresh assessment because in the meantime two years  period of limitation has expired for it would mean that the Tribunal was prevented from achieving the desired effect directly through the Commissioner but it could do so indirectly through the Income Tax Officer
A literal construction placed on subs
2 b would lead to such manifestly absurd and anomalous results which we do not think were intended by the Legislature
These considerations compel us to construe the words of sub section 2b as being applicable to suo motu orders of the Commissioner in revision and not to orders made by him pursuant to a direction or order passed by the Appellate Tribunal under sub section
4 or by any other higher authority
Such construction will be in consonance with the principle that all parts of the section should be construed together and every clause thereof should be construed with reference to the context and other clauses thereof so that the construction put on that particular provision makes a consistent enactment of the whole statute
Having regard to the above discussion we are clearly of opinion that the view taken by the Bombay High Court in Solanki s case supra on the construction of sub section
2 b of section 33B is correct and we approve of it
In Sabitri Devi Agrawalla s case supra the Assam High Court took a contrary view and held that under section 33B4 of the 281 Act the Tribunal would not be justified in remanding the case to the Commissioner after the two years had expired from the date of the order sought to be revised
The decision seems to rest on three aspects a it being fiscal statute the same must be strictly construed b the bar of limitation contained in sub section
2b was absolute and unqualified and covered all types of orders and c that unlike the second proviso to section 343 there was no provision for removing or relaxing the bar of limitation on the power of the Commissioner under section 33B 2 b and that since section 33B as well as section 343 with second proviso had been introduced in the Act by the same Amending Act of 1948 there was a deliberate omission to make a provision removing of relaxing the oar of limitation in section 33B and for such an omission the remedy lay with the Legislature and not with the Court
The Assam High Court also alluded to the fact that under the 1961 Act the Legislature had made a provision removing or relaxing the bar of limitation in section 2633
As regards aspect b we have already dealt with it above
As regards aspect a it is well settled that the principle that the fiscal statute should be construed strictly is applicable only to taxing provisions such as a charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions and by no stretch could section 33B be regarded as a charging provision
As regards aspect c we have already pointed out above that a casus omissus has not to be readily inferred and it could not be inferred from the mere fact that both sections 33B and 343 together with the second proviso were inserted simultaneously in the Act by the same Amending Act of 1948 and that in the case of former a relaxing provision was not made as was made in the case of the latter provision firstly because the two provisions operated in distinct fields and secondly it would be improper to do so without comparing the various stages of amendments through which each set of these provisions had undergone since inception
The further aspect that the Legislature has in the 1961 Act made the requisite provision removing or relaxing the bar of limitation in section 2633 is in our view not of much consequence
Irrespective of the question whether the second proviso to section 343 was enacted ex majore cautella or not over which conflicting views obtain it is clear to us that section 2633 of the 1961 Act must be regarded as an ex majore cautella provision
Admittedly at the time when the said provision was enacted in the 1961 Act the Bombay view held the field and there was no decision to the contrary of any other High Court
Obviously therefore the enactment of section 2633 must be regarded as declaratory of the law which was already prevailing and this position has been clarified in the Notes on Clauses of the Income Tax Bill 1961 where it has been stated that sub cl
3 of section 263 was new and had been 19 282 added to get over the difficulty experienced in wrongly state caused by  the Bombay High Court s decision in Solanki s case supra 
The enactment of an ex majore cautella provision in the 1961 Act would therefore be a legislative recognition of the legal position that obtained as a result of judicial pronouncement qua the 1922 Act
In our view therefore
the Assam case was wrongly decided
Reference may now be made to a decision of this Court in Pooran Mall s case where in a similar situation arising under section 132 of the Income Tax Act 1961 a restricted construction was accorded by this Court to sub section
5 thereof which prescribed certain period of limitation
In that case pursuant to an authorisation issued under section 1321 of the 1961 Act searches were carried out on October 15 and 16 1971 at the residence and business premises of P an individual and at certain office premises of the firms in which he was a partner and jewellery cash and account books were seized
There was also a search of two banks and a restraint order was made under section 1323 in respect of l 14 silver bars pledged with those banks on the ground that they were the property of P
On January 12 1972 the Income Tax Officer passed a summary order under section 1325 on the basis that all the assets seized and 114 silver bars belonged to P Thereupon P  Sons one of the firms in which P was a partner and P filed a writ petition in the High Court challenging the order dated January 12 1972 and on April 6 1977 on the basis of the consent of the parties the High Court quashed the order and permitted the department to make a fresh enquiry after giving an opportunity to the petitioner and pass a fresh order within two months
After a fresh enquiry the Income Tax Officer passed an order on June S 1972
holding that the silver bars belonged to P the individual and not the firm P and Sons
Thereupon the firm and P again filed a writ petition challenging the second order
The High Court held that the Income Tax Officer had no jurisdiction to pass that order beyond the period prescribed in section 1325 and set aside the order and directed the return of the 114 bars of silver
This Court held inter alia that the order made in pursuance of a direction given  under section 13212 or by a Court in writ proceedings was not subject to the limitation prescribed under section 1325
At page 394 this Court has observed thus Even if the period of time fixed under section 1325 is held to be mandatory that was satisfied when the first order was made
Thereafter if any direction is given under section 1322 or by a Court in writ proceedings as in this case we do not think an order made in pursuance of such a 283 direction would be subject to the limitations prescribed under A section 132 5 
Once the order has been made within ninety days the aggrieved person has got the right to approach the notified authority under section 13211 within thirty days and that authority can direct the Income Tax Officer to pass a fresh order
We cannot accept the contention on behalf of the respondents that even such a fresh order should be passed within ninety days
It would make the sub sections 11 and 12 of section 132 ridiculous and useless
 It may be pointed out that in section 132 there is no provision removing or relaxing the bar of limitation contained in section 1325 enabling the Income Tax Officer to pass an order afresh pursuant to any direction issued to him by a higher authority under section 13212 and even the this Court took the view that the limitation prescribed under section 1325 will be applicable only to the initial order to be made by the Income Tax Officer and not to an order that would be made by him pursuant to a direction from the Board or notified authority
The concerned provisions were read together and such construction was put on sub section
5 of section 132 as made a consistent enactment of the whole statute
In the result we are of opinion that the answer given by the High Court to the second aspect of the second question referred to it was clearly wrong and in our view the Tribunal s order vacating the Commissioner s order and directing the Commissioner to make assessment afresh after giving due opportunity to the respondent assessee was proper
The appeal is accordingly allowed but in the circumstances there will be no order as to costs
VDK Appeal allowed


Summary:
In respect of the accounting years ending March 31 1957 and March 1958 respectively on the voluntary returns submitted by the respondent the Income Tax Officer E  Ward District II 1 Calcutta completed the assessment for these years 1957 58 and 1958 59 on total incomes of Rs 7000 and Rs 7500 respectively the same having been made in the status of unregistered firm consisting of three partners namely Asha Devi Vaid Santosh Devi Vaid and Sugni Devi Vaid with equal shares
On August 2 1962 the Commissioner of Income Tax issued notice to show cause why the said assessments should not be cancelled under section 33B of the Act as he felt that the completed assessments were erroneous as being prejudicial to the interests of the Revenue and the Income Tax Officer E  Ward District II1 Calcutta had no territorial jurisdiction over the case of the assessee
The notice was served on the assessee on August 3 1962 and the hearing was fixed by the Commissioner for August 6 1962
On the ground that none appeared and there was no application for adjournment the Commissioner passed his order under section 33B ex parte on that date
By his said order the Commissioner cancelled the assessments made by the Income Tax Officer on three grounds a that some of the partners were minors and were not competent to enter into any partnership agreement with the result that the status of unregistered firm assigned to the assessee by the Income Tax Officer was clearly wrong and as such the assessments deserved to be cancelled b that the books of accounts were unreliable and they were not properly examined by the Income Tax Officer with the result that the assessments made were prejudicial to the interests of the revenue and c that the Income Tax Officer has no territorial jurisdiction over the case which fell in the jurisdiction of Income Tax Officer District III Calcutta and directed the Income Tax Officer having proper jurisdiction to make fresh assessments after examining the records of the assessee in accordance with law
The appeals preferred to the Appellate Tribunal under section 33B3 were accepted
Finding that the Commissioner s order passed at 1130 AM ex parte was bad in as much as the notice served upon the assessee permitted filing of objections at any time during the course of August 6 1962 and the objections were in fact filed later in the day the Tribunal remanded the case with the direction to dispose it of afresh after giving due opportunity to the respondent assessee
On a reference to the High Court at the instance of the appellant the 269 High Court held a the assumption of jurisdiction by the Commissioner under section 33B of the Income Tax Act was valid in law b the Tribunal acted properly in vacating or cancelling the Commissioner s order but c the Tribunal did not act properly in directing the Commissioner to act under section 33B1 because the period of limitation of two years prescribed under section 332b for him to act under section 33B1 had expired
In doing so the High Court held that the provision of sub section 2b was absolute and covered even a revisional order of the Commissioner passed in pursuance of a direction given by any appellate authority
Allowing the appeal by Certificate the Court  HELD 1
Under sub section 1 of section 33B of the Income Tax Act power has been conferred upon the Commissioner to revise Income Tax Officer s orders but the exercise of such power is regulated by the two conditions mentioned therein namely a he must consider the order sought to be revised to be erroneous as being prejudicial to the interests of the revenue and b he must give an opportunity to the assessee of being heard before revising it
Sub section
2b prescribes a period of limitation in negative words by providing that no order shall be made under sub s1 after the expiry of two years from the date of the order sought to be revised
Sub s3 confers on the assessee a right to prefer an appeal to the Appellate
Tribunal against the Commissioners  order made under sub s1 while sub section
4 indicates the power of the Appellate Tribunal in dealing with such appeal by providing that such appeal shall be dealt with in the same manner as if it were an appeal under sub s1 of section 33
Two things stand out clearly on a fair reading of the two concerned provisions namely sub s2b and sub s4
The bar of limitation contained in sub section
2b is on the Commissioner s power to pass revisional orders under sub section
1 and the same appears to be absolute in the sense that it applies to every order to be made under sub s1
At the same time sub s4 confers on the Appellate Tribunal very wide powers which it has while dealing with an appeal under section 331
In other words the Appellate Tribunal has power to pass such orders thereon ie on the appeal as thinks fit
 The word thereon restricts the jurisdiction of the Appellate Tribunal to the subject matter of the appeal which merely means that the Tribunal cannot adjudicate or give a finding on a question which is not in dispute and which does not form the subject matter of the appeal but the words pass such orders thereon as it thinks fit include all the powers except possibly the power of enhancement which are conferred on the Assistant Appellate Commissioner by section 31 and consequently the Tribunal has authority in exercise of its appellate powers to set aside the order appealed against and direct fresh assessment in the light of the observations made by it in its judgment
In other words similar power is possessed by the Appellate Tribunal while dealing with the appeal under sub s4 of section 33B 275 A H 276 A Hukamchand Mills s case  applied
Two principles of construction are relating to casus omissus and the other in regard to reading the statute as a whole are well settled
Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and 270 for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute
This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature
277 B 278 A B Artemiou vs Procopiou  Luke vs Inland Revenue Commissioner and 577 Quoted with approval
The object of introducing Section 33B with effect from March 30 1948 was to confer revisional powers upon the Commissioner to correct the erroneous orders of an Income Tax Officer in so far as they were prejudicial to the interests of the revenue
The language of the sub sec1 clearly suggests that the said power was contemplated to be exercised suo motu by the Commissioner inasmuch as the opening words show that it was upto the Commissioner to call for and examine the record of any proceedings under the Act and on examination of the record if he were satisfied that any order passed by an Income Tax Officer was erroneous as being prejudicial to the interests of the revenue he could revise the same after giving an opportunity to the assessee of being heard
It is true that sub s2b thereof prescribed a period of limitation on his power by providing that no order shall be made under sub s1 after the expiry of the two years from the date of the order sought to be revised by the Commissioner and a literal construction of sub s2b also suggests that the bar of limitation imposed thereby was absolute in the sense that it applied to every kind of order to be made under sub s1 and no distinction was made between a suo motu order and an order that might be made by him pursuant to a direction given by any appellate or other higher authority
Sub s3 conferred on an assessee a right to prefer an appeal to the appellate Tribunal against the Commissioner s order made under sub section 1 and under sub s4 the Tribunal had authority to deal with the impugned order of the Commissioner in such manner as it deemed fit in exercise of its appellate powers for instance it could confirm the impugned order it could annul that order or it could after vacating it remand the case back to the Commissioner for making a fresh assessment in the light of the observations made by it in its judgment or it could after calling for a remand report rectify the erroneous order of the Income Tax Officer
Further there was no period prescribed within which an appeal against the impugned order of the Commissioner had to be disposed of by the Tribunal and in the normal course on rare occasions such appeals would have been heard and disposed of before the expiry of two years from the date of the Income Tax Officer s order which was regard as erroneous by the Commissioner
More often than not such appeals would come up for hearing after the expiry of the said period of two years a fact fully known and within the contemplation of the Legislature when it introduced the section in the Act in 1948
278 E H 279 A D 4
The Legislature did not intend to attenuate or curtail the appellate powers which it conferred on the appellate Tribunal in very wide terms under sub s4 by enacting sub section 2b prescribing a time limit on the Commissioner s power to reverse an erroneous order of the Income Tax Officer when the Commissioner was seeking the exercise the same not suo motu but in pursuance of or obedience to a direction from the appellate authority
Any contrary and literal construction would lead to manifestly absurd result because in a given 271 case like the present one where the appellate authority Tribunal has found a the Income Tax Officer s order to be clearly erroneous as being prejudicial to the interests of the revenue and b the Commissioner s order unsustainable as being in violation of principles of natural justice it would be difficult for the appellate authority to exercise its powers
Obviously it could not withhold its hands and refuse to interfere with Commissioner s order altogether for that would amount to perpetuating the Commissioner s erroneous order nor could it merely cancel or set aside the Commissioner s wrong order without doing anything about the Income Tax Officer s order for that would result in perpetuating the Income Tax Officer s order which had been found to be manifestly erroneous as being prejudicial to the revenue
Moreover in exercise of its appellate powers it was open to the Tribunal itself to call for a remand report from either the Commissioner or the Income Tax Officer and rectify the Income Tax Officer s erroneous order after giving opportunity to the assessee and in doing so no question of limitation would arise
It was equally open to the Tribunal to set aside the Commissioner s order and remand the case directly to the Income Tax Officer giving requisite direction to rectify his erroneous order and thereupon the Income Tax Officer would carry out the Tribunal s direction for admittedly the bar of limitation under sub s2b was only on the Commissioner s power to make an assessment afresh and not on the Income Tax Officer
If this be the correct position then it is gravely anomalous that the Tribunal should not be in a position to set aside the Commissioner s order and remand the case back to the Commissioner for making a fresh assessment because in the meantime two years  period of limitation has expired for it would mean that the Tribunal was prevented from achieving the desired effect directly through the Commissioner but it could do so indirectly through the Income Tax Officer
A literal construction placed on sub s2 b would lead to such manifestly absurd and anomalous results which were not intended by the Legislature
Therefore the words of sub section 2b should be construed as being applicable to suo motu orders of the Commissioner in revision and not to orders made by him pursuant to a direction or order passed by the Appellate Tribunal under sub s4 or by any other higher authority
Such construction will be in consonance with the principle that all parts of the section should be construed together and every clause thereof should be construed with reference to the context and other clauses thereof so that the construction put on that particular provision makes a consistent enactment of the whole statute
279 D H 280 A G Commissioner of Income Tax vs Kishoresingh Kalyan Singh Solanki  approved
It is well settled that the principle that the fiscal statute should be construed strictly is applicable only to taxing provisions such as a charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions and by no stretch could section 33B be regarded as charging provision
281 C D 6
A casus omissus has not to be readily inferred and it could not be inferred from the mere fact that both sections 33B and 343 together with the second proviso were inserted simultaneously in the Act by the same Amending Act of 1948 and that in the case of former a relaxing provision was not made as was made in the case of the latter provision firstly because the two provisions operated in distinct fields and secondly it would be improper to do so without compar 272 ing the various stages of amendments through which each set of these Provisions had undergone since inception
The further aspect the Legislature has in the 1961 Act made the requisite provision removing or relaxing the bar of limitation in section 2633 is not of much importance
Irrespective of the question whether the second proviso to section 343 was enacted ex majore cautella or not over which conflicting views obtain it is clear that section 2633 of the 1961 Act must be regarded as an ex majore cautella provision
Admittedly at the time when the said provision was enacted in the 1961 Act the Bombay view held the field and there was no decision to the contrary of any other High Court
Obviously therefore the enactment of section 2633 must be regarded as declaratory of the law which was already prevailing and this position has been clarified in the Notes on Clauses of the Income Tax Bill 1961 where it has been stated that sub cl
3 of section 263 was new and had been added to get over the difficulty experienced in wrongly stated caused by  the Bombay High Court s decision in Solanki s case
The enactment of an ex majore cautella provision in the 1961 Act would therefore be a legislative recognition of the legal position that obtained as a result of judicial pronouncement qua the 1922 Act
281 E H 282 A CIT vs Sabitri Devi Agarwalla over ruled
Pooran Mall s case  relied on