Case: Messrs South India Steel Rolling Mills, Madras Vs. Commissioner of Income Tax, Madras

made in that regard and he has invited our attention to sub-section (5A) of section 32 AB where in express provision has been made for withdrawal of the amount standing to the credit of the assessee in the investment Deposit Account before the expiry of the period o f five years from the date of deposit in the event of dissolution of a firm. The learned counsel has urged that since the provisions contained in Sections 33(1)(a) and 34(3)(a) do not make any provision regarding dissolution of a partnership firm and speak of the assessee only, it must be held that the expression "assessee" in these provisions means the partnership firm as it stood before dissolution and would not cover a newly constituted firm after the dissolution of the old firm.Having regard to the words "which is owned by the assessee and is wholly used for the purposes of the business carried on by him, " in Section 33(1)(a) it must be held that the benefit of development rebate is available only to the assessee which is owning the machinery or plant and is using it wholly for the purpose of the business carried on by him. Similarly in Section 34(3)(a) the words used are "to be utilised by the assessee during a period of eight years next following for t he purposes of the business of the undertaking". The grant of development rebate under Section 33(1) (a) is subject to the condition laid down in Section 34(3)(a) which means that assessee who has obtained the development rebate under Section 33(1)(a) must also be the assessee who should utilise the amount credited to the Reserve Account during the period of eight years next following for the purposes of the business of the undertaking for which the development rebate was given. in other words, the expression " by the assessee" in these provisions refer to the same assessee. The condition for grant of rebate under Section 33 read with Section 34(3)(a) would not b satisfied if the assessee who has availed the rebate ceases to exist before the expiry of the period of eight years. 10. The decisions on which reliance has been placed by Ms. Ramachandran have no direct bearing on the point in issue. In Malabar Fisheries Co.. (supra) this Court has const rued the expression "transfer" in the context of Section 34(3)(b) of the act . In the instant case, we are not concerned with transfer of machinery or plant by the appellant-assesse. Here the assessee firm had ceased to exist as a result of dissolution before the expiry of the period of eight years. In Commissioner of Income Tax V. J.H. Gotla (Supra) this Court, while considering the provisions of Section 16(1)(c) of the Income Tax Act, 1922, has observed t hat where the plain literary in terpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language so as to achieve that intention of the Legislature and produce a rational const ruction. We are unable to hold that the said principle requires to be invoked while construing Section 33(1)(a) and opinion, has rightly held that in view of Section 34(3)(a) the appellant - assessee could not avail the benefit of development rebate. 11. The other contention of Ms. Ramachandran was that the Commissioner could not invoke his jurisdiction under Section 263 of the Act and that the matter could be dealt of rectification under Section 155 of the Act. The submission is that since Section 155 is a special provision dealing with the partnership firms, the general provision Contained in Section 263 could not be invoked. It was also contended that the power under Section 263 can only be invoked on the basis of the record as it stood when the order was passed by the Income Tax Officer and that it was not open to the Commissioner to take into account the dissolution of the assessee firm, which took place after the passing of the order, because that circumstance is not disclosed in the record before the Income Tax officer. As pointed out by the High Court , no question as to the competence of the Commissioner to exercise his power s of decision was raised by the assessee either before the Commissioner or before the Tribunal. Even otherwise there is no merit in this contention. Merely because the Income Tax Officer could have rectified the order, the Commissioner could not be precluded form the exercising the power conferred on him under Section 263 . the power of rectification conferred on the Income Tax officer under Section 155 and the power of revision conferred on the Commissioner under Section 263 are distinct powers. The pri nciple that one is a special provision and the other is a general provision has no application. The revisional power conferred on the commissioner under Section 263 is of wide amplitude . It enables the Commissioner to revise an order passed b y the Assessing Officer if he considers it to b erroneous and prejudice to the interests of the Revenue. We find no reason to limit this power by reference to Section 155. 12. As regards his taking into consideration an event which had occurred subsequent to the passing of the order by the Income Tax Officers, it may be stated that in Explanation (b) in Section 263 there is an express provision wherein it is prescribed that "record shall include and shall be deemed always to have include d all records relating to any proceeding under this act available at the time of examination by the commissioner". The death of one of the two partners resulting in the dissolution of the assessee firm on account of such death took place prior to the passing of the order by the commissioner and it could, therefore, be taken into consideration by him for the purpose of exercising his powers under Section 263 of the Act. 13.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We are unable to hold that the said principle requires to be invoked while construing Section 33(1)(a) and opinion, has rightly held that in view of Section 34(3)(a) the appellantassessee could not avail the benefit of developmentother contention of Ms. Ramachandran was that the Commissioner could not invoke his jurisdiction under Section 263 of the Act and that the matter could be dealt of rectification under Section 155 of the Act. The submission is that since Section 155 is a special provision dealing with the partnership firms, the general provision Contained in Section 263 could not be invoked. It was also contended that the power under Section 263 can only be invoked on the basis of the record as it stood when the order was passed by the Income Tax Officer and that it was not open to the Commissioner to take into account the dissolution of the assessee firm, which took place after the passing of the order, because that circumstance is not disclosed in the record before the Income Tax officer. As pointed out by the High Court , no question as to the competence of the Commissioner to exercise his power s of decision was raised by the assessee either before the Commissioner or before the Tribunal. Even otherwise there is no merit in this contention. Merely because the Income Tax Officer could have rectified the order, the Commissioner could not be precluded form the exercising the power conferred on him under Section 263 . the power of rectification conferred on the Income Tax officer under Section 155 and the power of revision conferred on the Commissioner under Section 263 are distinct powers. The pri nciple that one is a special provision and the other is a general provision has no application. The revisional power conferred on the commissioner under Section 263 is of wide amplitude . It enables the Commissioner to revise an order passed b y the Assessing Officer if he considers it to b erroneous and prejudice to the interests of the Revenue. We find no reason to limit this power by reference to Sectionregards his taking into consideration an event which had occurred subsequent to the passing of the order by the Income Tax Officers, it may be stated that in Explanation (b) in Section 263 there is an express provision wherein it is prescribed that "record shall include and shall be deemed always to have include d all records relating to any proceeding under this act available at the time of examination by the commissioner". The death of one of the two partners resulting in the dissolution of the assessee firm on account of such death took place prior to the passing of the order by the commissioner and it could, therefore, be taken into consideration by him for the purpose of exercising his powers under Section 263 of the Act.