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TMI Blog1972 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... er sheet that the Income-tax Officer had directed issue of notices under section 23(2) in respect of the five years on 14th December, 1959, which notices were purported to have been received personally by the authorised representative of the assessee on the same date. The cases were heard on 21st and 23rd December, 1959, and the assessment for these years was completed by the Income-tax Officer on 23rd December, 1959. It further appears from the records that the assessee had signed a declaration on 15th December, 1959, stating, inter alia, that : (i) at the time of her marriage with Sri Ram Prasad Luharwala about 15 years ago, the assessee received presents and dowry and birth day presentations on different occasions in kind as well as in cash to the extent of Rs. 18,000 and also a sufficient quantity of ornaments; (ii) with this amount of cash, she started business of investment on interest and out of the interest received she could save about Rs. 600 after meeting her expenses up to March, 1950 ; (iii) the sum of money at her disposal in March, 1950, was Rs. 13,500 which had been shown as the initial capital for the accounting year 1950-51; (iv) subsequently she start ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersonally served on the said authorised personal representative on 10th July, 1961. In his assessment for the above year the Income-tax Officer, Howrah, while remarking that the source of income of the assessee during the accounting year was income from speculation and interest on investments stated that neither the assessee was able to produce the details and vouchers of the speculative transactions made during the accounting year nor was there any evidence regarding the interest received by her from different parties on her investments. Notwithstanding these defects he did not investigate into the various sources but assessed the appellant on a total income of Rs. 9,037. Thereafter, on 7th June, 1963, the Commissioner by a notice under section 33B of the Act required the assessee to show cause on or before June 25, 1963, why appropriate orders should not be passed under that section in respect of the assessment year 1960-61 as the enquiries revealed that the assessee neither resided nor carried on any business from the address given in the return, that the Income-tax Officer was not justified in accepting the initial capital, the sale of ornaments, the income from business, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 1959-60 were already beyond time for taking action, he cancelled the assessment for 1960-61 and directed the Income-tax Officer to make a fresh assessment as stated above. The assessee appealed to the Tribunal against the aforesaid order of the Commissioner and it was urged that under section 33B the Commissioner could only call for and examine the proceedings of any particular assessment year if he considered that any order passed therein by the Income-tax Officer was erroneous and prejudicial to the interests of the revenue. This contention was accepted by the Tribunal on the ground that as the assessment orders for the years 1955-56 to 1959-60 could not be interfered with by the Commissioner under section 33B, he could not rely on those very orders for coming to a conclusion that the assessment order for 1960-61 was erroneous and prejudicial to the interests of revenue. The Tribunal further held that if the orders for 1955-56 to 1959-60 were left out and the assessment order for 1960-61 was considered by itself, it could not be said that the assessment order was prejudicial to the interests of revenue. It was also observed that the factum of advance of initial capital, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter, it held that there were materials before the Commissioner to justify his finding that the order of assessment for the year 1960-61 was erroneous in so far as it is prejudicial to the interests of revenue. It, however, did not pronounce any opinion on the question whether the Commissioner could have considered materials of the previous year in arriving at his conclusion in respect of the assessment for the year 1960-61. The learned advocate for the assessee contends that under section 33B the Commissioner had no jurisdiction to cancel the assessment made by the Income-tax Officer inasmuch as it cannot be said that where an assessee has been assessed to tax it was prejudicial to the interests of revenue on the ground that no assessment could have been made in respect of the income of which she made a voluntary return. This contention in our view is unwarranted by the language of section 33B. The words of the section enable the Commissioner to call for and examine the record of any proceeding under the Act and to pass such orders as he deems necessary as the circumstances of the case justify when he considers that the order passed was erroneous in so far as it is prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be relied upon for the purpose of exercising jurisdiction under section 33B. A reference to the case cited by him however would show that no steps had been taken under section 35 to rectify the mistake in the order of the Appellate Tribunal nor was any reference to the High Court sought against that order, but nonetheless the Income-tax Officer initiated fresh assessment proceedings under section 34 with respect to interest income and made a fresh assessment to include that income. In these circumstances it was held that where the order of the Appellate Tribunal became final the Income-tax Officer could not initiate reassessment proceedings even in respect of interest income which was binding on him and he could not, therefore, reopen the assessment to include that income. " If that were not the legal position ", this court observed, it " would be placing an unrestricted power of review in the hands of the Income-tax Officer to go behind the findings given by a hierarchy of Tribunals and even those of the High Court and the Supreme Court with its changing moods ". This case, therefore, is of little assistance In the view we have taken, the answer given by the High Court cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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