1973 (9) TMI 11 - HC - Income Tax

1. Whether Commissioner having authorised an appeal against the order of the Appellate Assistant Commissioner was justified in passing an order under section 33B relying solely on the very order of the Appellate Assistant Commissioner for the purposes of holding that the order of the Income-tax Officer was erroneous in so far as it was prejudicial to the interest of revenue ? 2. Whether section 33B proceedings can be taken against the legal heirs of a deceased assessee and if so whether the proceedings taken in this case by issue of a notice on an heir who was the karta of the Hindu undivided family are valid ? 3. Whether the legality of an assessment which had become final could be challenged in the proceedings taken by the Commissioner of Income-tax under section 33B of the Indian Income-tax Act 1922 ? - We answer the first question in the negative and the second question in the affirmative and return the third question unanswered

Summary

Issues:
1. Commissioner's authority to pass order under section 33B based solely on Appellate Assistant Commissioner's order.
2. Validity of section 33B proceedings against legal heirs of a deceased assessee.
3. Legality of challenging final assessment in section 33B proceedings.

Analysis:

Issue 1:
The Commissioner passed an order under section 33B based solely on the Appellate Assistant Commissioner's order, without providing reasons for considering the Income-tax Officer's order prejudicial to revenue. The Commissioner's power under section 33B is quasi-judicial, requiring independent assessment of the situation. The absence of reasons for prejudice renders the Commissioner's order legally flawed, as established in the case law. The Commissioner must justify the decision independently, and reliance solely on another order is insufficient.

Issue 2:
The case involved assessment of a deceased assessee, with the Income-tax Officer utilizing section 24B(3) to assess the deceased individual. The Commissioner initiated section 33B proceedings against the legal heir, serving notice on the heir who was the karta of the Hindu undivided family. While general law prohibits proceedings against a deceased person, statutory provisions like section 24B(3) allow assessment against a deceased individual. In this context, section 33B proceedings can be valid against legal heirs if the person liable to pay tax on the deceased is notified.

Issue 3:
The question of challenging a final assessment in section 33B proceedings was not directly addressed by the Tribunal. As there were no arguments or considerations on this aspect, the Court declined to answer this question. However, based on the conclusions regarding the first and second issues, the Court answered the first question negatively and the second question affirmatively. Each party was directed to bear their own costs due to partial success and failure in the case.