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TMI Blog1953 (3) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ous years. The Income-tax Officer held in the course of assessment that the profit and loss account of the company did not reflect the true profits, that, on the contrary, the company had secreted its profits in the shape of cash deposits in the accounts of the shareholders, and that the true profits of the company for the accounting year 1938 should be computed to be a sum of ₹ 4,86,351 after making certain adjustments. The Income-tax Officer considered that the losses incurred prior to calendar year 1938 were wiped out by the profits which were actually realised in calendar year 1938. Since the conditions requisite for the application of Section 23A were satisfied, the Income-tax Officer wrote to the Inspecting Assistant Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Inspecting Assistant Commissioner for showing cause, the company was entitled to appear before the Inspecting Assistant Commissioner on the 13th of March, 1945, and make such representation as it though fit. It was maintained that the date of service of the notice should be excluded for the purpose of counting a week's time given by the notice itself, and, since the order under Section 23A had been passed on the 12th of March, 1945, the company was denied the opportunity of showing cause, which opportunity was a matter of statutory right. The Appellate Assistant Commissioner accepted the contention of the assessee, and set aside the order of the Income-tax Officer under Section 23A, directing the Income-tax Officer to resume pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 23A of the Indian Income-tax Act, 1922, should be cancelled? After hearing learned counsel for the parties, we are satisfied that the first question has not been happily framed, and that the question should be re-drafted as follows in order to bring out the real controversy between the parties:- Whether the Appellate Assistant Commissioner, while setting aside the order passed by the Income-tax Officer under Section 23A of the Indian Income-tax Act, 1922, could legally direct the Income-tax Officer to resume proceedings from the stage of asking for approval of the Inspecting Assistant Commissioner? Question No. (2) as framed by the Income-tax Appellate Tribunal is in the following terms:- If the answer to question (1) is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 23A(1), the Appellate Assistant Commissioner had the powers only to confirm or cancel or vary the quantum of the order of assessment, and that the Appellate Assistant Commissioner had no power to make an order of remand or to give any direction to the Income-tax Officer that he should resume proceedings under Section 23A from the stage of asking for approval of the Inspecting Assistant Commissioner. Mr. Gopal Prasad, who appeared on behalf of the Income-tax Department, contested this proposition, and argued that the word vary in Section 31(3)(d) should be construed in a wide manner, and that the order passed by the Appellate Assistant Commissioner in the present case would come within the ambit of this sub-section. We do not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal to make an order of remand or to direct the Income-tax Officer to resume proceedings under Section 23A from the stage of asking for approval of the Inspecting Assistant Commissioner. The powers of the Income-tax Appellate Tribunal in disposing of an appeal are laid down in Section 33(4) of the Indian Income-tax Act, which states that the Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner. The powers conferred by Section 33(4) are of a very wide character, and it was not suggested by Mr. Dutta that, if the Income-tax Appellate Tribunal had itself set aside the order of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Officer. Since the order of the Income-tax Appellate Tribunal is a proper and legal order, there is hardly any point in the High Court answering the question whether the Appellate Assistant Commissioner had or had not the authority to make the order of remand under Section 31(3)(d). For the reasons expressed, we think that the question has become purely academic, and, according to the established authorities, the High Court is not bound to give an answer to a question of such character--see, for instance, the decision of the Privy Council in Sir Rajendra Narayan Bhanja Deo v. Commissioner of Income-tax, Bihar and Orissa*. We do not, therefore, propose to furnish any answer to either of the two questions formulated by the In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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