W.T.AS. NOS.4/KB TO 14/KB OF 1.986-87, DECIDED ON 17TH OCTOBER, 1990. VS W.T.AS. NOS.4/KB TO 14/KB OF 1.986-87, DECIDED ON 17TH OCTOBER, 1990.
1991 P T D (Trib.) 323
[Income-tax Appellate Tribunal Pakistan]
Before Muhammad Mujibullah Siddiqui, Judicial Member and Alvi Abdul Rahim,
Accountant Member
W.T.As. Nos.4/KB to 14/KB of 1.986-87, decided on 17/10/1990.
(a) Wealth Tax Act (XV of 1963)--
----S. 25(1) & (2)---Power of revision by Commissioner---Limitation---Provision of S.25(2) is controlled by S. 25(1) and the period of limitation provided in S.25(1) shall be attracted to the provisions contained in S.25(2).
Under section 25 of the Wealth Tax Act, 1963 the Commissioner of Wealth Tax has been conferred with the power of revision. Under subsection (1) the power has been conferred which cannot be prejudicial to the assessee meaning thereby that it can be exercised in favour of assessee only. While under subsection (2) of this section the Commissioner can exercise revisional powers in favour of revenue and for this purpose can modify, enhance or cancel the assessment with the direction for fresh assessment. The purpose of subsections (1) and (2) both is to confer power of revision on the Commissioner in respect of the orders passed by an authority subordinate to him. Thus, the purpose of both the subsections being same, it would be unreasonable and illogical to hold that in the first eventuality the legislature has fixed the time limit up to one year of passing of order by the subordinate authority and in the second eventuality the assessee has been left to the peril of Commissioner of Wealth Tax for indefinite period.
The concept of finality of assessment is firmly ingrained in the scheme under the Wealth Tax Act, 1963 as well as the Income Tax Ordinance, 1979. The assessments once completed under these statutes attain finality and cannot be disturbed or reopened except under the specific conditions provided in the statute and within reasonable period prescribed under various provisions of law. Thus, m the totality of the scheme of entire Wealth Tax Act it cannot be held that the legislature intended to leave an assessee at the mercy of Commissioner of Wealth Tax for indefinite period. The Sword of Damocles in the shape of risk of enhancement of assessment cannot be allowed to be hanging for all times to come.
The only intention of the legislature which can be gathered from the reading of section 25 as a whole is that subsection (2) of section 25 is controlled by subsection (1) thereof and, therefore, the period of limitation provided in subsection (1) shall be attracted to the provisions contained in subsection (2) thereof.
Since subsection (2) of section 25 starts with the expression "without prejudice to the provisions contained in subsection (1)", the powers conferred on the Commissioner of Wealth Tax under subsection (2) are more illustrative in nature and indicate that the Commissioner of Wealth Tax while exercising the revisional jurisdiction vested in him can pass an order prejudicial to the interest of assessee as well, but at the same time it has to be subject to the provision contained in subsection (1) and had to conform to the limitations contained therein.
In the present case period of limitation is provided in the same section and in respect of the same officer as well as for the same purpose, to wit, revision of the order by a subordinate authority and, therefore, there is much more reason to hold that the period of limitation provided in subsection (1) of section 25 is applicable to the exercise of revisional jurisdiction by Commissioner under subsection (2) of section 25.
Commissioner of Income-tax, East Pakistan v. Hossen Kassam Dada PLD 1961 SC 375; I.T.O. `A' Ward, Indore v. Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. (1975) 101 ITR 457; C.I.T., Bombay City v. Messes Narsee Nagsee and Co. AIR 1957 Bom. 1; (1961) 3 Tax 1; (1962) 3 Tax 374; Statutory Constitution by Crawford, 1940 Edn., pp. 288 to 290; Khomchand Ramdas v. C.I.T. (1934) 2 ITR 216; C.I.T. v. Khomchand (1938) 6 ITR 414: Shiv Kirpal Singh v. V.V. Giri (1970) 2 S C C 567; AIR 1970 SC 209; AIR 1946 PC 156; Babu Rao v. Zakir Hussain (1968) 2 S C C 133; C.I.T. v. S.R.Y. Ankineedu Parsad (1978) 115 ITR 78; Ram Niwaz v. Mithan Lal AIR 1979 P&H 262 and AIR 1980 Madh. Pra.166 ref,
(b) Wealth Tax Act (XV of 1963)---
----S. 25(2)---Expression "without prejudice to the provisions contained in subsection (1)" in S.25(2)---Effect---Powers conferred on the Commissioner of Wealth Tax under S. 25(2) are merely illustrative in nature and indicate that the Commissioner of Wealth Tax while exercising the revisional jurisdiction vested in him can pass an order prejudicial to the interest of assessee as well but at the same time it has to be subject to the provisions contained in S.25(1) and has to conform to the limitations contained therein.
The following conclusions can be drawn as to the effect of the expression "without prejudice to the provisions contained in subsection (1)" in S. 25(2) of the Wealth Tax Act, 1963:--
(a) That, wherever such expression is used the provisions following it, are in addition to the general provisions contained in the section or subsection referred to.
(b) The provisions following such expression are illustrative in nature and do not restrict the operation of general provisions contained in the sections or subsections referred to.
(c) The provisions following such expression are not to be construed independently but they are controlled by the provisions contained in the provisions so referred to. The provisions following such expression are subject to all limitations and are to be construed in accordance with the generality of provisions contained in the sections or subsections referred to and the two provisions are not to be divorced of each other.
I.T.O. v. Gwalior Rayon Silk Manufacturing Co. (1975) 101 ITR 457; Shiv Kirpal Singh v. V.V. Giri (1970) (11) SC Cases 567; AIR 1970 SC 209; AIR (32) 1946 PC 156; Babu Rao v. Zakir Hussain (1968) 2 SC Cases 133; C.I.T. v. S.R.Y. Ankineedu Parsad (1978) 115 1TR 78; Ram Niwaz v. Mithan Lal AIR 1979 P&H 262 and AIR 1980 Madhya Pradesh 166 ref.
(c) Wealth Tax Act (XV of 1963)---
----S. 25---Power of revision by Commissioner---Limitation---Commissioner of Wealth Tax can exercise his power of revision vested under S. 25(2), within the period of limitation provided in S. 25(1) and not beyond that.
(d) Wealth Tax Act (XV of 1963)---
----S. 25---Revision by Commissioner---Commissioner of Wealth Tax had revised assessment order beyond a period of one year of the passing of assessment orders by the Wealth Tax Officer---Such revision by the Commissioner being barred by time, held, was ultra vires, illegal, invalid and inoperative.
(e) Interpretation of statutes---
.... Fiscal statute---Where there is similarity of purpose in various provisions of a statute and more particularly in a fiscal statute the limitations contained in one of the similar provisions have to apply to the other provisions of a like nature.
(f) Interpretation of statutes---
----Intention of legislature and spirit of law, how to be gathered.
The intention of the legislature is to be gathered by examining the statute in entirety and the spirit of law is to be inferred by keeping a principle in view that the basic and underlying purpose of all legislation is to promote justice and that the Court should strive to avoid a construction which will attempt to make the statute unreasonable or which may leave the subjects to the uncontrolled, unbridled and indefinite peril and risk at the hands of State functionaries.
(g) Interpretation of statutes---
---- Expression "without prejudice to the generality of a referred provision-- implication, interpretation and effect on construction of the following provision.
I.N. Pasha and Ayub Lambat for Appellant.
Agha Kafil Barik, D.R. for Respondent.
Date of hearing: 19th June, 1990.
ORDER
MUHAMMAD MUJIBULLAH SIDDIQUI (JUDICIAL MEMBER).- The above appeals arise out of order dated 30-4-1986 by the learned Commissioner of Wealth-tax and Gift Tax, Southern Zone, Karachi under section 25(2) of the Wealth-tax Act, 1963 pertaining to the assessment years 1973-74 to 1983-84, modifying the assessment orders, thereby disallowing the exemptions claimed by the appellant under Martial Law Regulation 104-105 and originally allowed by the W.T.O.
2. Briefly stated the relevant facts are that the appellant claimed exemptions under M.L.R. 104-105 of 1972 in respect of the assessment years as given above. The W.T.O. allowed the exemption. The learned Commissioner of Wealth-tax and Gift Tax. Southern Zone, Karachi by virtue of authority vested in him under section 25(2) of the Wealth-tax Act, 1963 called for and examined the proceedings in all the assessment years under consideration and formed the opinion that the assessment orders giving exemptions to the appellant for the assessment years 1973-74 to 1983-84 were erroneous in so far as they were prejudicial to the interest of revenue. He, therefore, issued notice under section 25(2) of the Wealth-tax Act dated 17th of March, 1984 in respect of all the assessment years under consideration which were served on the appellant on 19-3-1984. On receipt of these notices the appellant filed constitutional petitions before the Honourable Sindh High Court and got the proceedings stayed under section 25(2) of the Wealth-tax Act. Subsequently these constitutional petitions were allowed to be withdrawn on 19-2-1986.
3. After withdrawal of writ petitions the learned Commissioner of Wealth-tax issued fresh notices under section 25(2) of the Wealth-tax Act, on 22nd of March, 1986 which were served upon the appellant on the same day and the case was fixed for hearing on 5-4-1986. In reply to the notices under section 25(2) of the Wealth-tax Act the learned counsel for the appellant submitted written arguments. The objections raised on behalf of the appellant have been summarized by the Commissioner of Wealth-tax as under:--
(i) that the certificate of Habib Bank Limited relates to sale proceed of immovable property for the repatriation of which no time limit was fixed in M.L.R. 105 of 1972. For the repatriation of the sale proceed of immovable property the State Bank of Pakistan has extended the time up to 30th June, 1973 and the sale proceeds were repatriate; before that date and as such the assessee has rightly claimed the exemption and the W.T.O. has rightly allowed the same.
(ii) that the plain reading of M.L.R. 105 will prove that the Rupee equivalent of any amount repatriated shall not be chargeable to any tax. This exemption is unlimited and not restricted to the year in which the repatriation took place.
(iii) that section 25 of Wealth-tax Act has to be read as a whole. On such reading it is clear that suo moto action under this section. can be taken within a year as provided in proviso to section 25(l) of the Act. The A.R. has cited the case of M j s. Hussain Kassim Dada reported as P L D 1961 SC 375 and the case of Commissioner of Sales-tax v. Ch. Farzand Ali reported at (1983 P T D 271).
4. The learned Commissioner of Wealth-tax repelled all the above objections by giving detailed reasons. The reasons assigned by the learned Commissioner of Wealth Tax whereby objections Nos.1 and 2 were repelled are not relevant for the purposes of this appeal, therefore, they are not being considered by us in this order. The finding of the learned Commissioner of Wealth-tax relating to the third objection dealing with the point of limitation is relevant for our purposes and, therefore, the relevant finding of the learned Commissioner of Wealth-tax is reproduced below:--
"The assessee's third contention, that time limit for taking action under subsection (2) of section 25 is only one year as provided in proviso to section 25(1) of the Wealth-tax Act, is also not acceptable. The cases cited by the learned Advocate do not help the assessee. Subsection (1) and subsection (2) referred to two different situation where the Commissioner exercising his power of revision makes his own order. Under subsection (1) he may act on his own motion or on being moved by an assessee and revise an order passed by any authority subordinate to him. But he cannot make an order under this subsection against the interest of an assessee and for his very reason there is no provision therein for hearing the assessee before making a new order under this subsection. Under subsection (2), the Commissioner is allowed to pass an order even against the interest of the assessee after hearing him where he finds that the order passed by the W.T.O. is erroneous and prejudicial to the interest of revenue. In other words under subsection (1), the Commissioner cannot enhance the tax liability whereas under subsection (2) he can after the hearing. The legislature has restricted the power of Commissioner of Wealth Tax under subsection (1) to pass an order within the period of one year of the assessment year. Why not such period is fixed for exercising the power under subsection (2). Subsection (2) of section 25 is independent providing a set of circumstances mentioned in subsection (1) of section 25. The intention is to be gathered from the plain reading of subsection (2) independently without importing any words or sentence from any other subsection or section of the Act. With this view, this subsection starts with words "without prejudice to the provision contained in subsection (1)" i.e. the provisions under this subsection do not in any way militate against the exercise of power of revision under subsection (1). The legislature has, therefore, not prescribed any time limit under this subsection, so that Government may not be deprived of the proper tax on account of erroneous order. There is no time fixed for exercise of power under subsection (2) and it is open to the Commissioner to revise an order of Wealth-tax Officer even after one year provided such assessment order is erroneous and prejudicial to the interest of revenue after giving an opportunity-to the assessee."
5. The learned Commissioner of Wealth-tax ultimately held that: "the W.T.O. has erroneously allowed exemption to the assessee when such exemption was not admissible. 1, in exercise of the powers conferred under subsection (2) of Section 25 of the Wealth-tax Act do hereby modify the assessment orders for the years 1973-74 to 1983-84 by disallowing exemptions claimed by the assessee under M.L.R. 10/105. The net effect of this combined order would be that the assessee would not be entitled to the exemption allowed to him."
6. Being aggrieved with the above directions of the learned Commissioner of Wealth-tax the appellant has preferred these appeals before us raising objections to the impugned directions on merits by placing reliance on the provisions of M.L.R. 104-105 as well as on the point of limitation. However, during the course of arguments Mr. I.N. Pasha, learned counsel for the appellant has not pressed his objections oh merits. The only objection pressed by him is in respect of the period of limitation. The contention of Mr. Pasha is that the orders passed by the learned Commissioner of Wealth-tax are barred by time, as according to him the learned Commissioner could not exercise jurisdiction under section 25(2) of the Wealth-tax Act. 19(3 after one year from the date of order passed by the W.T.O.
7. Mr. I.N. Pasha learned counsel for the appellant has vehemently objected to the findings of the learned Commissioner of Wealth-tax to the effect that subsection (1) of section 25 and subsection (2) of section 25 of the Wealth-tax Act, 1903 are independent of each other and deal with different sets of circumstances. He has submitted that the learned Commissioner of Wealth-tax has erred in holding that the intention of legislature is to be gathered from the plain reading of subsection (2) independently without importing any word or sentence from any other subsection or section of the Act. Mr. Pasha has further submitted that the learned Commissioner of Wealth-tax has mis-directed in interpreting the expression, "without prejudice to the provisions contained in subsection (1)" used in subsection (2) of section 25 of the Wealth-tax Act. The contention of Mr. Pasha is that section 25 of the Wealth-tax Act, 1963 is to be read as a whole for gathering the intention of the legislature. He has further submitted that since subsection (2) of section 25 of the Wealth-tax Act starts with the words, "without prejudice to the provisions contained in subsection (1)" therefore, the provisions contained in subsection (2) are not independent but they are controlled by the provisions contained in subsection (1). He has contended that the powers conferred on the Commissioner of Wealth-tax under subsection (2) of section 25 are in continuation of the powers conferred under section 25(1) and are in fact in addition thereto and as such they are to be construed and have to be exercised within the parameters and scope of the limitation contained in subsection (1) including the period of limitation. He has submitted that the purpose of subsection (1) and subsection (2) of section 25 is same, to wit, to confer the power of revision on Commissioner of Wealth-tax in respect of the orders of subordinate authorities. The only difference being that under subsection (1) of Section 25 the Commissioner cannot pass an order prejudicial to the assessee meaning thereby that either the Commissioner can grant a relief to an assessee or at the most he has to maintain the same position as obtaining, on passing of order by a subordinate authority. However, under subsection (2) the Commissioner is empowered to make an order prejudicial to the assessee and in doing so to enhance, modify or cancel the assessment order and can give a direction for fresh assessment as well. Mr. Pasha has submitted that the purpose of both the subsections is same and a period of limitation has already been provided in subsection (1) of section 25. Under subsection (1) of section 25 the Commissioner is not empowered to revise any order on his own motion if any such order by the subordinate authority is made more than a year previously. According to Mr. Pasha, since the period of limitation was already provided in subsection (1), therefore, the legislature did not deem it fit to provide the period of limitation again in subsection (2). He has maintained that the purpose was served firstly, because the section is to be read as a whole and secondly as a matter of abundant caution the expression, "without prejudice to the provisions contained in subsection (1) has been used in subsection (2). In support of his contention Mr. Pasha has placed reliance on the judgment of Honourable Supreme Court of Pakistan in the case of Commissioner of Income-tax, East Pakistan v. Hossen Kassam Dada reported as P 1. D 1961 SC 375 and on the judgment of Honourable Supreme Court of India in the case of I.T.O. `A' Ward, Indore v. Gwalior Rayon Silk Manufacturing (Weaving) Co Ltd. reported as (1975) 101 1 T R. 457. Mr. I.N. Pasha has submitted that since the learned Commissioner of Wealth-tax has passed orders under section 25(2) of the Wealth-tax Act, 1963 in all the assessment years under appeal on 30-4-1986 and it is evident from the chart reproduced in the earlier part of this order that the orders are beyond a period of one year from the previous orders, therefore, all the orders of learned Commissioner of Wealth-tax are without jurisdiction, beyond period of limitation and consequently void. On the other hand, Mr. Agha Karl Barik, the learned D.R. has supported the impugned orders of learned Commissioner of Wealth-tax and has submitted that since the legislature has not provided any period of limitation under section 25(2) of the Wealth-tax Act, 1963, therefore, the learned Commissioner of Wealth-tax has rightly repelled the objection of the appellant in this behalf.
8. We have carefully considered the contentions raised by the learned representatives for the parties and have perused the material available on record. In order to appreciate the contentions raised by the learned representatives for the parties it would be appropriate to reproduce section 25 of the Wealth-tax Act, 1963 as it stood in the year:--
"25. Powers of Commissioner to revise orders of subordinate authorities.---(1) The Commissioner may, either of his own motion or on application made by an assessee in this behalf, call for the record of any proceeding under this Act in which an order has 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, not being an order prejudicial to the assessee, as the Commissioner thinks lit:--
Provided that the Commissioner shall not revise any order under this subsection in any case--
(a)...................................................................
(b)...................................................................
(c) where the application is made by the assessee for such revision, unless--
(i) the application is accompanied by a fee of twenty-rive rupees; and
(ii) the application is made within one year from the date of the order sought to be revised or within such further period as the Commissioner may think to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period:
(2) Without prejudice to the provisions contained in subsection (1), the Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by a Wealth-tax Officer is erroneous in so far as it is prejudicial to the interests of revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry 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 it and directing a fresh assessment."
9. The first contention of Mr. Pasha is that although no period of limitation is specifically provided in subsection (2) of section 25 above, but the provision of section 25(2) is not to be read in isolation but the entire section is to be read as a whole in order to rind out the intention of legislature. In support of his contention he has placed reliance on the judgment of Honourable Supreme Court of Pakistan in the case of C.I.T. v. Hossen Kasam Dada (Supra). A perusal of this judgment shows that a similar question in respect of period of limitation came for consideration before the Honourable Supreme Court in the context of section 11(1) and section 14 of the Business Profit Tax Act, 1947. Briefly stated the relevant facts in the cited case were that the Business Tax Officer for the first time on 16th January 1952, served notices on the assessee firm under section 11 (if the Business Profit Tax Act calling upon to furnish returns of the profits of its business for the accounting period 1st April, 1946 to the 14th April, 19446 and 15th July, 1946 to 14th July, 1947. The assessments were completed on 30th of January, 1952. On perusal to the Appellate Assistant Commissioner the assessments were set aside on 26th of January, 1953 on the ground that no prior approval for the assessments were taken from the I.A.C. The re-assessments were completed opt 31st May, 1955 and were this time confirmed on appeal on the 8th of February, 1958. On further appeal to the Income-tax Appellate Tribunal the assessments were held to he illegal and void for the reason that the assessments were initiated after the period of limitation contained in section 14 of the Business Profit Tax Act. On reference to the Honourable Dacca High Court the view taken by the Appellate Tribunal was upheld. The view taken by the Appellate Tribunal and the Honourable High Court was to the effect that the statute has to be read as a whole and cm reading of the sections of statute together the intention of the legislature that could be gathered there from was to prescribe a period of limitation for assessing business profits by section 14 of the Act which was held to control the provisions of section 11 thereof. In coming to this conclusion the Honourable Dacca High Court adopted the reasoning of Chagla, C.J. of the Bombay High Court in the case of C.I.T. Bombay City v. M/s. Narsee Nagsee and Co. (AIR 1957 Bombay 1): (1961) 3 Tax 1. On further appeal to the Honourable Supreme Court of Pakistan it was contended on behalf of the department that section 14 of the Business Profit Tax Act deals with an entirely different matter while section 11 is an independent section. It was pleaded that section 14 of the Business Profit Tax Act dealt with the escaped assessment while section 11 thereof dealt with a case where no assessment was initiated. It was further contended that since section 11 does not prescribe any period of limitation, the High Court was in error in reading into it something which is not there. The Honourable Supreme Court of Pakistan repelled the above contentions and upheld the view held by the Appellate Tribunal and the Honourable Dacca High Court to the effect that period of limitation prescribes: under section 14 of the Business Profit Tax Act controls the provisions of section 11 thereof. It was ultimately held that the legislature did not feel the necessity of fixing any period in section 11 of Business Profit Tax Act because in a subsequent section namely 14 it was proposing to fix the time limit and. therefore, a notice calling for return under section 11 of the Business Profit Tax Act should ordinarily be issued within a reasonable period and this should not extend beyond period specified in section 14 of the said Act.
10. Section 11(1) and 14 of the Business Profit Tax Act, 1947 are reproduced below for ready reference:--
"11(1). The Income-tax Officer may, for the purposes of this Act, require any person whom he believes to be engaged in any business to which this Act applies, or to have been so engaged during any chargeable accounting period, or to be otherwise liable to pay business profits tax to furnish within such period, not being less than forty-five days from the date of the service of than notice, as may be specified in the notice, a return in the prescribed form and verified in the prescribed manner setting forth (along with such other particulars as may be provided for in the notice) with respect to any chargeable accounting period specified in the notice the profits and taxable profits of the business or the amount of deficiency, if any available for relief under section 4:
Provided that the Income-tax Officer may in his discretion, extend the date for the delivery of the return.
Section 14. If, for any reason profits of any chargeable accounting period chargeable to business profits tax have escaped assessment, or have been under-assessed, or have been the subject of excessive relief, the Income tax Officer may at any time within four years of the end of the chargeable accounting period in question serve on the person liable to such tax a notice containing all or any of the requirements which may be included in a notice under section 11, and may proceed to assess or reassess the amount of such profits liable to business profits tax, and the provisions of this Act, shall, so far as may be, apply as if the notice were a notice issued under that section:
Provided that unless definite information has come into his possession the Income-tax Officer shall not initiate proceedings under this section without obtaining the previous approval of the Inspecting Assistant Commissioner of Income-tax."
11. It would be appropriate to observe that the question of period of limitation under section 11 of the Business Profit Tax Act, 1947 came for consideration for the first time before Bombay High Court in the case of C.I.T. v. M/s. Narsee Nagsee (AIR 1957 Bom. 1) wherein it was held that period of limitation provided in section 14 of the Business Profit Tax Act was applicable to the issuance of notice under section 11 of the said Act. The view held by Bombay High Court was confirmed by the Supreme Court of India in the judgment reported as (1961) 3 Tax 1. The same question came for consideration before the Honourable Dacca High Court in the case reported as (1962) 3 Tax 374 and by placing reliance on the judgment of Bombay High Court it was held that the notice calling for return issued more than four years after the chargeable accounting period under section 11 of the Business Profit Tax Act, 1947 was not valid in law because section 11 was controlled by section 14 of the Business Profit Tax Act which limited the scope of issue of such notice. This view of the Honourable Dacca High Court was confirmed by the Supreme Court of Pakistan in the case on which Mr. Pasha has placed reliance. In these circumstances it would be proper to have recourse to the reasoning adopted by Chagla, Chief .Justice of Bombay High Court. The contention of Income-tax Department before the Honourable Bombay High Court was as follows:--
"The whole of Mr. Joshi's argument on behalf of the Commissioners is that the legislature has not provided any limitation of time with regard to the issue of this notice. It is pointed out that the notice may be issued with regard to any chargeable accounting period and the notice may be issued at any time, and what is urged is that if section 11 does not limit the jurisdiction of the Income-tax Officer to issue such a notice for any specific period of time, the Court cannot import into the section a provision which the legislature did not think fit to incorporate.
It is perfectly true that if we were to read section 11 by itself, it would be difficult to resist the point of view put forward by Mr. Joshi. The notice is issued on the 12-1-1953, it is for the chargeable accounting period 13-11-1947 to 31-10-1948, and there is no reason why on a construction of section 11 by itself we should take the view that the notice which has been issued more than four years after the end of the chargeable accounting period is not a proper or valid notice."
12. It was held by Honourable Mr. Justice Chagla as follows:--
"In our opinion every Act must be construed as a whole and the duty of the Court must be as far as possible to reconcile the various provisions of a statute. This obligation, in our opinion is all the greater in the case of a taxing statute.
Therefore, we must look at the various provisions of the Business Profits Tax Act in order to decide what is the true effect to be given to the language used in section 11, and in this connection the most relevant section which must come up for our consideration is section 14. That section deals with profits escaping assessment or profits which have been under-assessed or case: where the assessee has obtained excessive relief, and the Income-tax officer has been given the jurisdiction to issue a notice in respect of these profits provided the notice is issued within from years of the end of the chargeable accounting period.
Therefore, it is clear from section 14 that the Legislature did not intend to put an assessee to the peril of an indefinite apprehension with regard to the payment of tax in respect of profits made under the Business Profits Tax Act. The intention of the Legislature was clear that after four years of the end of the chargeable accounting period the assessee should not be proceeded against even if profits had escaped assessment or his profits had been under assessed or he had obtained a relief to which he was not entitled.
Inasmuch as section 11 does not indicate any period of time with regard to the issuing of a notice, would it or would it not be right for us to import into section 11 the consideration which led the Legislature to fix a limitation of time for the purpose of issuing a notice under section 14? If we were not to do that we would arrive at this rather extraordinary conclusion that the Legislature while saving the subject from harassment of proceedings with regard to escaped assessment or under assessment, permitted that harassment with regard to the very initiation of proceedings after the lapse of four years.
It is contended that the period of four years mentioned in section 14 supplies an important indication of what the period of limitation should be with regard to the issue of a notice under section ,11. If income which has escaped assessment can be taxed within four years by reason of section 14 then it must inferentially follow that income must escape assessment at some point of time anterior to the period of four years mentioned in section 14" ..........................
"We may also point out that although the Legislature has not imposed any limitation of time with regard to the issue of a notice under section 11 and although as a canon of construction it may be said that if the Legislature has not imposed any limitation it is not for the Court to restrict the power conferred by the Legislature upon the Income-tax Officer, it is well settled that if statutory powers are conferred upon an authority the Court must hold that those statutory powers must be exercised reasonably and in our opinion if statutory power is conferred upon the Income-tax Officer to issue a notice for the purpose of assessment under section 11 that power must be exercised reasonably, and looking to the provisions of section 14 it could not be said that when the Income-tax Officer issued this notice four years after the close of the chargeable accounting period he was exercising his statutory authority in a reasonable manner.
In our opinion this clearly indicates that as far as the Business Profits Tax Act was concerned the Legislature was anxious that business profits should not be brought to tax at any point of time without any limitation and that some protection should be given to the assessee, and the protection should be that after the lapse of a certain period of time the profits should not be liable to tax if the Taxing Authorities were not diligent enough to take the necessary proceedings.
Whichever way one looks at it, the position is not free from difficulty. But as this is a taxing statute, if we can reconcile section 11 and section 14 and reconcile it in a manner which is beneficial to the subject, then it is our duty, to do so. We do not and cannot accept the argument of Mr. Joshi that we must construe section 11 independently of any other section of the Act.
After all section 11 is only one section of the Business Profits Tax Act. We cannot ignore or shut our eyes to the other sections, and if the other sections help us to construe section 11 in a reasonable manner, it is our duty to do so. It is in this light that we have come to the conclusion that the Tribunal was right in coming to the conclusion that it did."
13. While confirming the above view of Bombay High Court the Supreme Court of India observed that the period of limitation provided in section 14 of Business Profits Tax Act was applicable to the notices issued under section 11 of the said Act because section 14 dealt with the escaped assessment, under-assessment and the assessment which is the subject of excessive relief and the expression escaping assessment applies to the cases of no-assessment for want of notice and, therefore, the purpose of both the sections being same the provisions contained in section 11 would be deemed to have been controlled with the provision; contained in section 14. Similar reasoning was adopted by the Honourable Judges of, Dacca High Court in the case of Hossen Kassam Dada (supra) and the Honourable Supreme Court of Pakistan approved the reasoning enunciated for the first time by Chagla, Chief Justice of the Bombay High Court in the case of C.I.T. v. Narsee Nagsee (supra).
14 The intention of legislature is not to be inferred by reading one particular section or subsection in isolation or independently. The intention of legislature is to be gathered by reading the whole statute. The Honourable Bombay High Court. Dacca High Court, Supreme Court of India and Supreme Court A' Pakistan have clearly held that if two different provisions contained in two different sections of a statute envisage the identical purpose the period of limitation provided in one section of the statute shall be deemed to be applicable to the other provision dealing with similar situation and in which no period of limitation is prescribed. While interpreting sections 11 and 14 of the Business Profits Tax Act, 1947 it has been held that the purpose of both the sections was to tax the escaped assessment and, therefore, period of limitation provided in section 14 of the said Act was applicable to the issuance of notice under section II thereof. Now applying the above principle to the facts of the present case we find that under section 25 of the Wealth Tax Act, the Commissioner of Wealth Tax has been conferred with the power of revision. Under subsection (1) the power has been conferred which cannot be prejudicial to the assessee meaning thereby that it can he exercised in favour of assessee only. While under subsection (2) of this section the Commissioner can exercise revisional powers in favour of revenue and for this purpose can modify, enhance or cancel the assessment with the direction for fresh assessment. The purpose of subsections (1) and (2) both is to confer power of revision on the Commissioner in respect of the orders passed by an authority subordinate to him. Thus, the purpose of both the subsections being same, it would be unreasonable and illogical to hold that in the first eventuality the legislature has fixed the time limit up to one year of passing of order by the subordinate authority and in the second eventuality the assessee has been left to the peril of Commissioner of Wealth Tax for indefinite period. When we examine the whole statute in the light of principles laid down by the Honourable Supreme Court of Pakistan in the case of Hossen Kassam Dada as follows:--
"Be that as it may we for ourselves would prefer to follow the conventional path and endeavour upon a construction on the entire provisions of the Business Profits Tax Act and to ascertain what the legislature intended, particularly, since the legislature has itself said that the liability to the payment of tax is to be "subject to the provisions of the Act".
We find that the concept of finality of assessment is firmly ingrained in the scheme under the Wealth Tax Act, 1963 as well as the Income Tax Ordinance, 1979 The assessments once completed under these statutes attain finality and cannot he disturbed or reopened except under the specific conditions provided in the statute and within reasonable period prescribed under various provisions of law. Thus, in the totality of the scheme of entire Wealth Tax Act it cannot he held that the legislature intended to leave an assessee at the mercy of Commissioner of Wealth Tax for indefinite period. The Sword of Damocles in the shape of risk of enhancement of assessment cannot be allowed to be hanging for all the times to come. It would be beneficial to reproduce an observation from the Statutory Construction by Crawford, 1940 Edition, page 288 to 290:--
"If we assume--as we must--that the law-makers are conscientious, in event the statute is ambiguous and subject to several constructions, that one which operates in a harsh, unreasonable or absurd manner certainly does not represent the legislative intent. The basis and underlying purpose of all legislation, at least in theory is to promote justice. Because it must be presumed that the legislature has acted for the welfare of the people, the presumption that its enactments were not intended to operate other than for the best interest of the people is well-founded.
As a result, the Court should strive to avoid a construction which will tend to make the statute unjust, oppressive, unreasonable, absurd, mischievous, or contrary to the public interest. That construction should be accepted which will make the statute effective and productive of the most good, as it is presumed that these results were intended by the legislature. In order to carry out the legislative intent, it is, therefore, apparent that the statute should be given a rational, logical and sensible interpretation. Any construction should be avoided, if possible, as contrary to the intent of the law-makers, that produces any effect at a variance with the commonly recognised concepts of what is right, just and ethical."
15. In the light of above principle and the principles laid down by the Bombay High Court, Dacca High Court, Supreme Court of India and Supreme Court of Pakistan (supra) we have no hesitation in holding that the only intention of the legislature which can be gathered from the reading of section 25 as a whole is that subsection (2) of section 25 is controlled by subsection (1) thereof and, therefore, the period of limitation provided in subsection (1) shall be attracted to the provisions contained in subsection (2) thereof.
16. We are fortified in our views with the judgment of Judicial Commissioner's Court of Sindh in the case of Khomchand Ramdas v. C.I.T. reported as (1934) 21 T R 216. This judgment has been confirmed by the Privy Council in the case reported as C.I.T. v. Khomchand (1938) 6 1 T R 414. In the above-cited case the question for consideration was whether the Commissioner while exercising revisional powers under section 33 of the Income-tax Act, 1922 as it stood at that time could revise an order passed by any authority subordinate to him without any limitation of period, or he had to exercise his power of revision under section 33 of the said Act within a period of one year, which was prescribed in sections 34 and 35 of the said Act, as he had to make order subject to the provisions of that Act, notwithstanding that no period of limitation was prescribed in section 33 of the said Act. In order to appreciate the point in question properly, it would be beneficial to reproduce the relevant provisions of section 33, section 34 and section 35 of the Income-tax Act, 1922 as they stood in the year, 1928:--
"33.--(1) The Commissioner may, of his own motion, call for the record of any proceeding under this Act which has been taken by any authority subordinate to him ."
(2) On receipt of the record the Commissioner may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit:
Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard."
34. If for any reason income profits or gains chargeable to income-tax has escaped assessment in any year, or has been assessed at too low a rate, the Income-tax Officer may at any time within one year of the end of that year, serve on the person liable to pay tax on such income, profits or gains, or, in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under subsection (2) of section 22 and may proceed to assess or re-assess such income, profits or gains and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that subsection:--
Provided that the tax shall be charged at the rate at which it would have been charged had the income profits or gains not escaped assessment or full assessment, as the case may be.
35.--(1) The Income-tax Officer may, at any time within one year from the date of any demand made upon an assessee, on his own motion. rectify any mistake apparent from the record of the assessment, and shall within the like period rectify any such mistake which has been brought to his notice by such assessee;
Provided that no such rectification shall be made, having the effect of enhancing an assessment unless the Income-tax Officer has given notice to the assessee of his intention so to do and has allowed him a reasonable opportunity of being heard.
(2) Where any such rectification has the effect of reducing the assessment, the Income-tax Officer shall make any refund which may be due to such assessee.
(3) Where any such rectification has the effect of enhancing the assessment, the Income-tax Officer shall serve on the assessee a notice of demand in the prescribed form specifying the sum, payable and such notice of demand shall be deemed to be issued under section 29, and the provisions of this Act shall apply accordingly."
17. The relevant facts in the above case were that on 17th of January, 1927 the I.T.O. Shikarpur passed assessment order in respect of the firm of Khomchand Ramdas at an income of Rs.1,25,000 and on the same date the I.T.O. ordered the registration of the firm. On 9th January, 1928 a notice was served on the firm under section 33 of the said Act to show-cause as to why the I.T.O's, order dated 17th January, 1927 for the registration of the firm should not be set aside? On 13th February, 1928 the Commissioner after considering the representation made by the firm in response to the notice, in exercise of his power under section 33, cancelled the order of I.T.O. for the registration of the firm. In view of the cancellation of registration of firm the I.T.O. demanded several proceedings took place which are not relevant for our purposes and ultimately when the matter came for consideration before the Judicial Commissioner's Court of Sindh in reference, it was held by Aston A.J.C. as follows:--
"I am also of opinion that the order of the Commissioner cancelling the order of the Income-tax Officer directing the registration of the firm more than a year after the order was made was invalid. The words "subject to the provisions of this Act" as Mr. Rajagopala Chari points out in the law of Income-tax in India at p. 198 indicate that the, Commissioner's powers under section 33 of the Act are subject to the time limit of one year mentioned in sections 34 and 35: see Jesa Ram v. C.I.T., Ganesh Das v. C.I.T. and C.I.T. v. Abdur Kadir Marakayar and Co. As the order dated 17th January, 1927, of the Income-tax Officer, was revised and cancelled by the Commissioner on 13th February, 1928, more than a year after it was passed, the cancellation was, in my opinion, illegal."
18. The Commissioner being aggrieved with the above findings of Judicial Commissioner's Court of Sindh took up the appeal with the Privy Council and it was contended before the Privy Council that the C.I.T. might at any time and apparently after any lapse of time however, long, cancel the registration of the respondents. It was held by a Bench consisting of five Law Lords of the Privy Council as follows:--
"It was, indeed, contended before their Lordships that the assessment could not be regarded as having been determined inasmuch as the Commissioner might at any time, and apparently after any lapse of tine, however long, cancel the registered firm and so subject the respondents to liability to pay super tax. Their Lordships would, in any case, hesitate long before acceding to a contention that would lead to so extravagant results. In their opinion, however, the contention cannot prevail. The Commissioner's power under section 33, can only be exercised subject to the provisions of the Act of which the provisions in sections 34 and 35, are in this respect of the greatest importance."
19. After considering the provisions of sections 33, 34 and 35 of the Income-tax Act, 1922 as they stood at that time their Lordships of the Privy Council observed as follows:--
"In view of these express provisions of the Act, it is in their Lordship's opinion quite impossible to suppose that the Income-tax Officer may in every kind of circumstances and after any lapse of time make fresh assessments or issue fresh notices of demand; or that the Commissioner ran direct him so to do."
20. Their Lordships of the Privy Council ultimately upheld the opinion expressed by the Court of Judicial Commissioner and dismissed the appeal preferred by the Commissioner.
21. It will be seen that although under section 33 of the Income-tax Act, 1922 no period of limitation was provided for exercising revisional jurisdiction but their Lordships of the Privy Council approved the view of Judicial Commissioner's Court of Sindh that since the Commissioner is supposed to exercise revisional jurisdiction "subject to the provisions of this Act" the Commissioner's power under section 33 of the Act are subject to the time limit of one year mentioned in sections 33 and 35. Thus, their Lordships of the Privy Council (Sic) the principle that the intention of the legislature is to be gathered by looking at a statute as a whole and not by taking any action independently or in isolation. The same principle was subsequently approved by the Supreme Court of India in the case of M/s. Narsee Nagsee and Co. (supra) and the Honourable Supreme Court of Pakistan in the case of Hossen Kassam Dada (supra) and was applied, to wit, where there is similarity of purpose in various provisions of a statute and more particularly a fiscal statute the limitations contained in one of the similar provisions have to apply to the other provisions of a like nature. Since under sections 34 and 35 of the Income-tax Act, 1922 an order prejudicial to the interest of assessee could be made by reopening of assessment or rectification of mistake in the assessment order within period of one year, therefore, it was held that an order prejudicial to the interest of assessee, by Commissioner, in exercise of revisional powers vested in him under section 33 of the said Act shall also be made within the same period of limitation of one year,
22. All the judgments of the superior Courts discussed above are directed to the same principle that the intention of the legislature is to be gathered by examining the statute in entirety and the spirit of law is to be inferred by keeping a principle in view that the basic and underlying purpose of all legislation is to promote justice and that the Court should strive to avoid a construction which will attempt to make the statute unreasonable or which may leave the subjects to the uncontrolled, unbridled and indefinite peril and risk at the hands of State functionaries.
23. Applying the above principles to the facts of the present case we find that the plea taken by Mr. I.N. Pasha is on much better footing. Under section 33 of the Income-tax Act, 1922 as it stood in 1928 no period of limitation was provided and that section dealt with the power of revision vested in Commissioner. Sections 34 and 35 dealt with the reopening of assessment and rectification respectively by the I.T.O. However, since the effect of exercise of jurisdiction under section 33 by the Commissioner, and exercise of jurisdiction under sections 34 and 35 by the I.T.O. would be the same, i.e., enhancement of liability, therefore, it was held that the period of limitation prescribed under sections 34 and 35 is to apply to the exercise of jurisdiction under section 33 of the Act, 1922 without specific provision in this behalf. In the present case period of limitation is provided in the same section and in respect of the same officer as well as for the same purpose, to wit, revision of the order by a subordinate authority and, therefore, there is much more reason to hold that the period of limitation provided in subsection (1) of section 25 is applicable to the exercise of revisional jurisdiction by Commissioner under subsection (2) of section 25.
24. Mr. I.N. Pasha, learned counsel for the appellant has canvassed his point of view from another angle as well. He has submitted that subsection (2) of section 25 starts with the expression, "without prejudice to the provisions contained in subsection (1)", which bears a connotation that provisions of subsection (2) of section 25 are firstly, in addition to the provision contained in subsection (1) and secondly the provisions contained in subsection (2) are controlled by the limitations contained in subsection (1). In support of his contention he has placed reliance on the judgment of Supreme Court of India in the case of I.T.O. v. Gwalior Rayon Silk Manufacturing Co. (1975) 101 I T R 457. In this judgment subsections (2) and (3) of section 220 of the Indian Income-tax Act, 1961 came for consideration which reads as follows:--
"(2) If the amount specified in any notice of demand under section 156 is not paid within the period limited under subsection (1), the assessee shall be liable to pay simple interest at four percent. per annum from the day commencing after the end of the period mentioned in subsection (1).
(3) Without prejudice to the provisions contained in subsection (2), on an application made by the assessee before the expiry of the due date under subsection (1), the Income-tax Officer may extend the time for payment or allow payment by instalments, subject to such conditions as he may think fit to impose in the circumstances of the case."
25. While interpreting the above provisions Honourable Judges of the Supreme Court of India held as follows:--
"What is important, however, is that subsection (3) is not independent of subsection (2) but is interconnected with it. The words "without prejudice to the provisions contained in subsection (2)" clearly show that any order passed by the Income-tax Officer under subsection (3) must neither be inconsistent with nor prejudicial to the provisions contained in subsection (2). In other words, the position' is that although subsection (3) is an independent provision the power under this subsection lieu has to be exercised subject to the terms and conditions mentioned in subsection (2) so far as they apply to the facts mentioned in subsection (3). Thus, if subsection (2) of section 220 provided that the rate of interest chargeable would be four percent. per annum any order passed under subsection (31 could not vary that rate., and if it did, then the order to that extent would stand superseded. The argument of the assessee is that subsections (2) and (3) of section 220 were independent provisions which operated in fields of their own. We are, however, unable to accept this somewhat broad proposition of law. Subsections (2) and (3) form part of the same section, namely section 220, and are, therefore, closely allied to each other. It is no doubt true that the two subsections deal with separate issues but the non obstante clause of subsection (3) clearly restricts the order passed under subsection (3) to the conditions mentioned in subsection (2) of section 220 of the Act ..............
Any order which is passed under subsection (3) would be subject to the rate of interest mentioned in subsection (2) and as soon as the rate mentioned in subsection (2) is varied or enhanced by the legislature it would have to be read into subsection (2) from the date of the amendment and any order passed under subsection (3) would be subject to the rate so fixed. In fact if this is not the position, then the order passed under subsection (3) being prejudicial to subsection (2) becomes illegal and invalid and the Income-tax Officer exceeds the limits of his jurisdiction in passing such an order:'
26. Similar expression came for consideration before the Supreme Court of India in the case of Shiv Kirpal Singh v. V.V. Giri [(1970) (11) Supreme Court Cases 567, A I R 1970 SC 209]. The provisions of section 171(c) of the Indian Penal Code read as under:--
"(1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.
(2) Without prejudice to the generality of the provisions of subsection (1), whoever--
(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested with injury of any kind, or
(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or of spiritual censure.
shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of subsection (1)."
27. While interpreting the expression "without prejudice to the generality of the provisions of subsection (1)" the Honourable Judges of the Supreme Court of India held that, "it is well-settled that when this expression is used anything contained in the provisions following this expression is not intended to cut down the generality of the meaning of the preceding provision. This was so held by the Privy Council in King Emperor v. Sibnath Benerji."
28. In the case of Emperor v. Sibnath Benerji referred to above a similar expression came for consideration before their Lordships of the Privy Council A I R (1946) 32 P.C. L56. Subsections (1) and (2) of section 2 of the Defence of India Act, 1939 read as follows:-
"(1) The Central Government may, by notification in the Official Gazette., make such rules as appear to it be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community.
(2) Without prejudice to the generality of the powers conferred by subsection (1), the rules any provide for, or may, empower any authority to make orders providing for all or any of the following matters namely ......
29. While giving connotation of the expression "without 'prejudice to the generality of the powers conferred by subsection. (1)" their Lordships of the Privy Council held as follows:--
"In the opinion of their Lordships, the function subsection (2) is merely an illustrative one; the rule-making power is conferred by subsection (1) and "the rules" which are referred to in the opening sentence of subsection (2) are the rules which are-authorised by, and made under, subsection (1); the provision of subsection (1), as indeed is expressly stated by the words "without prejudice to the generality of the powers conferred by subsection (1)". There can be no doubt--as the learned Judge himself appears to have thought--that the general language of subsection (1) amply justifies the terms of Rs.26, and avoids any of the criticisms which the learned Judge expressed in relation to subsection (2).
30. While interpreting subsection (2) of section 171(c) of the Indian Penal Code the Supreme Court of India in the case of Babu Rao v. Zakir Hussain (1968) 2 SC Cases 133 expressed the similar view holding that the definition of undue influence in subsection (1) of section 171(c) is wide in terms and what is contained in subsection (2) of section 171 (c) is merely illustrative.
31. We have been able to lay hand on some other cases from Indian jurisdiction wherein similar question came for consideration. In the case of Additional C.I.T. v. S.R.Y. Ankineedu Parsad (1978) 115 1 T R 78, Andhra Pradesh High Court interpreted provisions of section 52 of the Indian Income-tax Act, 1961 which reads as follows:
52. (1) Where the person who acquired a capital asset from an assessee is directly or indirectly connected with the assessee and the Income-tax Officer has reason to believe that the transfer was effected with the object of avoidance or reduction of the liability of the assessee under section 45, the full value of the consideration for the transfer shall, with the previous approval of the Inspecting Assistant Commissioner, be taken to be the fair market value of the capital asset on the date of the transfer.
(2) Without prejudice to the provisions of subsection (1), if in the opinion of Income-tax Officer the fair market value of a capital asset transferred by an assessee as on the date of the transfer exceeds the full value of the consideration declared by the assessee in respect of the transfer of such capital asset by an amount of not less than fifteen per cent, of the value so declared, the full value of the consideration for such capital asset shall, with the previous approval of the Inspecting Assistant Commissioner, be taken to be its fair market value on the date of its transfer------"
32. It was contended on behalf of the C.I.T. that subsection (2) of section 52 operates independently of subsection (1) and in an area not covered by subsection (1). This contention was not accepted 'by the Honourable Judges of Andhra Pradesh High Court. It was held that both the subsections form one code when construed in the light of object of inserting subsection (2). It was held that both the subsections were enacted with the same object and, therefore, they cannot be divorced of each other.
33. Similar expression came for consideration before Punjab and Haryana High Court in the case of Ram Nawaz v. Mithan Lai (AIR 1979 P. & H. 262) and before Madhya Pradesh High Court in the case of Shesh Kumar Koshbo (AIR 1980 Madhya Pradesh 166) with reference to the provisions contained in section 97 of the Civil Procedure Code. It was held that, "it is well settled that the enumeration of specific matters "without prejudice to the generality" of a particular provision does not restrict the general application of that provision to the matters enumerated because the words "without prejudice" have the effect of preserving the full effect of the general provisions and also because the rule of enjusdem generis has no inverse application:'
34. On a resume of the above case-law regarding effect of the use of expression "without prejudice to the generality of provisions contained in subsection (1)", the following conclusions can be drawn:--
(a) That, wherever such expression is used the provisions following it, are in addition to the general provisions contained in the section or subsection referred to.
(b) The provisions following such expression are illustrative in nature and do not restrict the operation of general provisions contained in the sections or subsections referred to.
(c) The provisions following such expression are not to be construed independently but they are controlled by the provisions contained in the provisions so referred to. The provisions following such expression are subject to all limitations and are to be construed in accordance with the generality of provisions contained in the sections or subsections referred to and the two provisions are not to be divorced of each other.
35, In the light of above conclusions we are inclined to agree with the submission of Mr. I.N. Pasha that since subsection (2) of section 25 starts with the expression "without prejudice to the provisions contained in subsection (1)", the powers conferred on the Commissioner of Wealth Tax' under subsection (2)'are, merely illustrative in nature and indicate that the Commissioner of Wealth Tax' while exercising the revisional jurisdiction vested in him can pass an order prejudicial to the interest of assessee as well, but at the same time it has to be subject to the provision contained in subsection (1) and has to conform to the limitations contained therein.
36. Thus, looking it from whatever angle we have no hesitation in holding that the Commissioner of Wealth-tax can exercise his power of revision vested under subsection (2) of section 25, within the period of limitation provided in subsection (1) of section 25 and not beyond that.
37. As a result of above findings we are persuaded to agree with the submission of Mr. I.Td. Pasha that since the Commissioner of Wealth-tax has revised all the assessment orders beyond a period of one year of the passing of assessment orders by the Wealth-tax Officer therefore, all of them are barred by time and as such they are ultra vires, illegal, invalid and inoperative.
38. Consequently, all the impugned orders of the learned Commissioner of Wealth-tax are hereby annulled and the original assessment orders as made by the Wealth-tax Officer are restored.
39. All the appeals are allowed accordingly.
M.B.A./968/TAppeals allowed.