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TMI Blog1980 (9) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, provides for exclusion of certain periods while computing the period of four years, prescribed by sub-section (1). Sub-section (7) reads as follows: "(7) Where an assessment made under this section has been set aside by any court or other competent authority under this Act for any reason, the period between the date of such assessment and the date on which it has been set aside shall be excluded in computing the period of four years, or six years, as the case may be, specified in this section for the purpose of making any fresh assessment." The real question in these cases is: what is the precise period which is liable to be excluded under sub-section (7)? For a proper appreciation of this question it is necessary to state the relevant facts. The assessment with respect to the assessment year 1962-63, under both the enactments, was made by the Commercial Tax Officer, Visakhapatnam, on 31st March, 1964. The Commercial Tax Officer was of the opinion that certain sales effected by the assessee (petitioner herein), which it was calling "compulsory sales", are not exempt from sales tax. With respect to the assessment year 1963-64, he made the assessment on 2nd December, 1964, ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment and order dated 1st December, 1977. The present tax revision cases are directed against this order. The main contention of Mr. T. Anantha Babu, the learned counsel for the petitioner, is that the assessment made on 26th August, 1976, with respect to the assessment year 1962-63, is barred under section 14(1) of the A.P.G.S.T. Act. He says that the Tribunal erred in holding that the entire period from 31st March, 1964, to 16th November, 1973 (the date on which the Sales Tax Appellate Tribunal passed its earlier orders), is liable to be excluded under sub-section (7) of section 14. According to the learned counsel, the only two periods that can be excluded, are (i) the period between 31st March, 1964 (i. e., the date of the original assessment order), and 22nd March, 1965 (the date of the Assistant Commissioner's order in appeal), and (ii) the period between 12th December, 1965 (the date of fresh assessment order passed in pursuance to the order of remand by the Assistant Commissioner), and 3rd May 1968 (the date of the order of the Deputy Commissioner in revision). We are referring only to the dates of the orders relating to the assessment year 1962-63 under the A.P.G.S.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision upon the Commissioner, Deputy Commissioner and some other officers. This power can be exercised suo motu. Section 21 provides an appeal to the Appellate Tribunal both against an order passed in appeal under section 19 and against an order passed by the Deputy Commissioner under section 20. Section 22 provides a revision to this Court against the orders of the Appellate Tribunal. Subsection (7) of section 14, therefore, says, "where an assessment made under this section has been set aside by any court or other competent authority under this Act for any reason, the period between the date of such assessment and the date on which it has been set aside shall be excluded in computing the period of four years.........specified in this section for the purpose of making any fresh assessment". Mr. Anantha Babu says that sub-section (7) of section 14, occurring as it does in a taxing enactment should be strictly construed; and if so construed, the only periods which can be excluded are those between 31st March, 1964, and 22nd March, 1965; and 12th December, 1965, and 3rd May, 1968, and none else. He contends that it is unreasonable and unjust to exclude the entire period between 31st M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of appeal upon the assessee, against the orders passed by the Commissioner, to the Appellate Tribunal; and sub-section (4) empowered the Tribunal to deal with the order of the Commissioner in such manner as it deems fit, in exercise of its appellate powers, and "to pass such orders thereon as it thinks fit". In the case before the Supreme Court, the assessments made by the assessing authority were revised by the Commissioner under section 33B. The Commissioner cancelled the assessment orders, and directed the Income-tax Officer, competent in that behalf, to make fresh assessments according to law. The order of the Commissioner was appealed against by the assessee. The Tribunal allowed the appeal on the ground that the Commissioner did not give a reasonable and adequate opportunity to the assessee to present its case and, accordingly, remitted the matter back to him with a direction to dispose it of afresh, after giving due opportunity to the assessee. Against that order, a reference was sought, and made to the High Court of Calcutta. The High Court was of the opinion that the period of limitation contained in sub-section (2)(b) was an absolute one and covered even a revisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome up for hearing after the expiry of the said period of two years--a fact fully known and within the contemplation of the legislature when it introduced the section in the Act in 1948. In these circumstances did the legislature intend to attenuate or curtail the appellate powers which it conferred on the Appellate Tribunal in very wide terms under sub-section (4) by enacting sub-section (2)(b) prescribing a time-limit on the Commissioner's power to revise an erroneous order of the Income-tax Officer when the Commissioner was seeking to exercise the same not suo motu but in pursuance of or obedience to a direction from the appellate authority? According to the construction contended for by the assessee and which found favour with the High Court the answer was in the affirmative because sub-section (2)(b), on its literal construction, was absolute. In our view such literal construction would lead to a manifestly absurd result, because in a given case, like the present one, where the appellate authority (Tribunal) has found, (a) the Income-tax Officer's order to be clearly erroneous as being prejudicial to the interests of the revenue, and (b) the Commissioner's order unsustainable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble, then the one favouring the assessee should be adopted. Mr. Anantha Babu's contention echoes the classic statement of Rowlatt, J., in Cape Brandy Syndicate v. Inland Revenue Commissioners[1921] 1 K.B. 64 at 71., where the learned Judge said: "In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used But, we are not sure whether the said rule continues to be valid, with all its rigour, in the modern times. As observed by the Gajendragadkar, J., in Rajputana Agencies Limited v. Income-tax Commissioner[1959] 35 I.T.R. 168 at 174 (S.C.); A.I.R. 1959 S.C. 265 at 269. "the tendency of modern decisions upon the whole is to narrow materially the difference between what is called a strict and beneficial construction". Now a few passing reflections. In the light of the Constitution we have given to ourselves and the goals set out therein, it is a question to be pondered over by jurists and lawyers alike, whether the rules of interpretation evolved in a different milieu are valid i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be excluded, even though the latter order sets aside the former order. Similarly, the Deputy Commissioner's order was, in turn, set aside by the Tribunal, in 1973. There is no reason to look to the order of the authority immediately superior to the assessing authority. As we have stated earlier, the object of sub-section (7) is to exclude the period between the date of assessment and the date of the order setting it aside. In the context, it would mean the final order setting aside the assessment. In this case, the final order setting aside the assessment is that of the Tribunal dated 16th November, 1973. An argument has been addressed to us, saying that the original order of assessment dated 31st March, 1964, was already set aside by the Assistant Commissioner on 22nd March, 1965, and that, on the date of the Tribunal's order (in 1973) the original order of assessment was not subsisting or alive to be set aside. But, this argument ignores the fact that the order which set aside the original assessment was itself, in turn, set aside, and the Tribunal expressly set aside all the orders of the authorities below and remanded the matter for fresh assessment, to the Commercial T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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