SECTION 264 – REVISION OF OTHER ORDERS [CORRESPONDING TO SECTION 33A OF THE 1922 ACT]

1264. Situations where order can be said to have been made “sub­ject of an appeal” in terms of clause (c) of sub-section (4)

1. Section 264(4)(c ) provides that the Commissioner shall not revise any order under that section where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal. A doubt has been raised whether in the fol­lowing situations the order can be said to have been made “sub­ject of an appeal” :

     (i)   where the appeal was withdrawn by the assessee and it was dismissed as such;

   (ii)   where the appeal was dismissed on the ground that the appeal was incompetent;

  (iii)   where the appeal was dismissed on ground of limi­tation.

2. The Board are of the view that the order cannot be said to have bean made “subject of an appeal” if the appeal has been disposed of by the Commissioner (Appeals) or the Appellate Tribu­nal without passing on order under section 251(1) or 254(1) on merits.

Circular : No. 367 [F.No. 273/21/80-ITJ], dated 26-7-1983.

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