1971 (3) TMI 28 - HC - Income Tax

Whether the Commissioner of Income-tax was competent to take proceedings under section 33B and to pass an order under section 33B - If, yes, whether the order passed by the Commissioner of Income-tax under section 33B was a valid and proper order - Tribunal is right in holding that the order of the Commissioner of Income-tax under section 33B was fully within his competence and was a valid and proper order

Summary

Issues:
1. Competency of Commissioner of Income-tax to take proceedings under section 33B and pass an order under section 33B.
2. Validity and propriety of the order passed by the Commissioner of Income-tax under section 33B.

Analysis:
The judgment by the High Court of Allahabad dealt with the competency of the Commissioner of Income-tax to initiate proceedings under section 33B and the validity of the subsequent order passed. The case involved an assessee-firm that was assessed as an unregistered firm for the years 1960-61 and 1961-62. The Commissioner of Income-tax, upon finding the assessments prejudicial to revenue interests, invoked section 33B of the Indian Income-tax Act, 1922, to revise the orders. The Commissioner issued notices under section 263 of the Income-tax Act, 1961, and later under section 33B of the Act of 1922. The assessee challenged the proceedings, citing lack of adequate time for preparation.

Regarding the first issue of the Commissioner's competency, the court referred to a Supreme Court decision establishing that proceedings under section 33B could be taken even after the repeal of the Act of 1922 by the Act of 1961. The Income-tax (Removal of Difficulties) Order, 1962, was deemed valid in providing for retrospective application. The court dismissed the contention that the order was invalid due to retrospective effect, affirming the Commissioner's authority to proceed under section 33B.

On the adequacy of opportunity provided to the assessee during the proceedings, the court found that the assessee had sufficient time to prepare its case. The notice issued earlier under section 263 of the Act of 1961 informed the assessee well in advance. The court noted that the assessee did not attempt to secure an adjournment or raise concerns about inadequate time during the proceedings. Therefore, the court rejected the contention that the assessee was not afforded adequate time.

Regarding the second issue of the order's validity and propriety, the court upheld the Tribunal's decision that the Commissioner's order under section 33B, directing modification of assessments of partners, was within his competence. The Tribunal correctly pointed out that the appeal was filed by the firm, not the partners, thus justifying the Commissioner's action. The court affirmed that the order was valid and proper, ruling in favor of the Commissioner of Income-tax and awarding costs.

In conclusion, the High Court of Allahabad answered both questions in the affirmative, affirming the Commissioner's competence and the validity of the order under section 33B. The court upheld the Tribunal's decision and awarded costs to the Commissioner.