JUDGMENT Satish Chandra, J.
1. The dispute relates to the assessment year 1956-57, and is confined to the question whether the profits accruing on the sale of two patlas of gold were assessable to tax.
2. It appears that the appellant was the member of a joint Hindu family which underwent a partial partition on 7th June, 1943. On partition the appellant received seven patlas of gold as part of his share in the joint family assets. In the previous year relevant to the assessment year 1956-57, the appellant sold two patlas of gold. He had after the partition entered the price of these two patlas of gold at Rs. 24,514. They were sold for Rs. 46,250. The Income-tax Officer brought the surplus of Rs. 21,736 to tax on the finding that the gold represented the stock-in-trade of the appellant. The appellant filed an appeal. The only point raised before the Appellate Assistant Commissioner was that the surplus receipts were not liable to tax, because they had not constituted revenue receipts, but were capital gains.
3. It appears that for the assessment year 1947-48, the appellant was assessed in respect of three out of the seven patlas of gold because he had sold them during the course of the previous year relevant to that assessment year. His case that the surplus of the sale of those three patlas were not liable to tax was repelled by the Income-tax Officer, and that finding was upheld by the Tribunal also.
4. In the present case, the Appellate Assistant Commissioner repelled the appellant's submission on the basis of the findings given by the Income-tax Appellate Tribunal for the assessment year 1947-48. Aggrieved, the appellant filed a revision before the Commissioner of Income-tax under Section 33A(2) of the Indian Income-tax Act, 1922. The revision was dismissed. Aggrieved, the appellant filed a writ petition before the Tribunal which also failed. Hence, the present appeal.
5. It appears that the appellant filed the memorandum of revision. Thereafter, the Commissioner did not fix any date for its hearing. He disposed it of by a reasoned order dated 12th July, 1960. The appellant's grievance is that the Commissioner of Income-tax ought to have afforded an opportunity of hearing to the appellant before deciding the revision. It was urged that if he had done so, the appellant would have brought to the notice of the Commissioner the fact that in the case of the assessment year 1947-48, an application for calling a reference was pending in this court, and in that situation the Commissioner might have stayed the decision of the revision.
6. In support of this submission, the learned counsel urged that the revisional jurisdiction under Section 33A was judicial in nature, with the result that it was incumbent on the authority to afford an opportunity of hearing. For this proposition reliance was placed on a decision of the Supreme Court in the case of Dwarka Nath v. Income-tax Officer, [1965] 57 I.T.R. 349; [1965] 3 S.C.R. 536 (S.C.).. In that case the principal question involved was whether the revisional jurisdiction under Section 33A was administrative or quasi-judicial in nature. The Supreme Court after discussing the matter came to the conclusion that it was judicial in nature. In that connection it was observed:
"Prima facie, the jurisdiction conferred under Section 33A(2) of the Indian Income-tax Act, 1922, is a judicial one. The order that is brought before the Commissioner affects the right of the assessee. It is implicit in revisional jurisdiction that the revising authority shall give an opportunity to the parties affected to put forward their case in the manner prescribed."
7. The provisions of the Income-tax Act and the Rules framed thereunder do not prescribe that the Commissioner ought to fix a date for hearing and a0ord an opportunity to the parties to argue their cases on that date. It prescribes that an assessee may under the conditions mentioned in that section apply in revision to the Commissioner against the impugned order. The assessee is supposed to file a memorandum stating his grievance against the impugned order. The Commissioner decides the revision upon that material. In the context of these provisions and the implications of provisions of the Income-tax Act, the observations quoted above do not, in our opinion, mean that even in those cases where the Commissioner takes into consideration no material other than those furnished by the appellant in the application in revision, the Commissioner must afford the assessee another opportunity either of hearing or for putting forward their case. In relation to an application where in the High Court an assessee files a revision, the material mentioned in the memorandum of revision is sufficient opportunity to him to put forward his case and in cases where the revision is decided on that material the assessee cannot have any grievance that he has not been afforded an adequate opportunity to put forward his case. This decision, therefore, does not help the appellant.
8. Reliance was also placed upon a decision of this court in Dulal Chand Pramanick v. Commissioner of Income-tax, [1972] 84 I.T.R. 720 (Orissa).. In that case the Orissa High Court held that the Supreme Court had in Dwarka Nath's case ruled that the assessee was entitled to a hearing of the revision petition. We are unable to accept this construction of the Supreme Court's decision. We have quoted the only relevant observations of the court on this point and according to it the parties are to have an opportunity to put forward their case in the manner prescribed.
9. The requirements of a judicial proceeding are not to invariably afford an opportunity of oral hearing. (See F.N. Roy v. Collector of Customs, A.I.R. 1957 S.C. 648.). The facts of this case are simple enough. The Appellate Assistant Commissioner had relied upon the decision of the Tribunal in the earlier year. The Commissioner has done the same. There was hardly anything contentious upon which a solution cannot reasonably be reached without an oral hearing. On facts also we are not satisfied that any prejudice has been caused to the appellant for lack of oral hearing.
10. It was urged that if an oral hearing had taken place the appellant would have informed the Commissioner that an application calling for a reference in respect of the assessment year 1947-48 was pending. We fail to see what prevented the appellant to mention this fact in the memorandum of revision filed by him. If he had said so, the Commissioner would have noticed it and dealt with it. In the absence of any assertion that this fact was mentioned in the memorandum of revision, or otherwise brought to the notice of the Commissioner, the appellant is not entitled to take any grievance that the Commissioner of Income-tax was not justified in refusing to consider this aspect.
11. From a perusal of the orders of the Income-tax Officer, the Appellate Assistant Commissioner as well as the Commissioner, it is clear that the only plea taken by the appellant was that the surplus receipts were not liable to tax at all, because they were capital gains. No specific plea that even if the surplus receipts were liable to tax the valuation should have been made on the basis of market value on the date of partial partition, was ever raised before any of the authorities.
12. The appellant wishes to raise this point before us on the basis of the decision given by this court on a reference for the assessment year 1947-48. A perusal of that judgment which is Gangadhar Babu Lal v. Commissioner of Income-tax, [1966] 62 I.T.R. 718 (All.). shows that the appellant, who was the assessee there, had specifically raised the question of valuation on the basis of the market value as a separate plea before the income-tax authorities. That is why a separate question was framed and referred to the High Court and answered by the High Court. Since the plea was not raised in the present case before any of the income-tax authorities, the appellant is in our opinion not entitled to raise it for the first time here.
13. We find no substance in this appeal. It is accordingly dismissed with costs.