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TMI Blog1964 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... , a sum of Rs. 2,32,081 determined to be payable for the financial year 1962-63 on the basis of the assessment order dated December 31, 1962. Since this notice was illegal, the petitioner made representations to the Income-tax Officer and the Commissioner of Income-tax, but without any result. This led to the filing of the present writ petition on February 28, 1963. In the return filed by the respondent, two preliminary objections have been raised. Firstly, it was stated that the petition was misconceived. The payment of advance tax on income during the relevant year of account was the statutory liability of an assessee and failure to pay the same visited him with statutory consequences. The respondent had merely quantified the amounts payable by the assessee with reference to the last completed assessment. If the assessee thought that that figure was higher than what was justified on his actual income in the relevant accounting period, he had the statutory remedy of giving his own estimates and making payment of advance tax for the period accordingly. The petitioner had, therefore, effective remedies open to him under the Income-tax Act. Secondly, it was mentioned that the objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the writ petition already filed. This application was granted subject to just exceptions with notice to the respondent by Jindra Lal J. on April 7, 1964. Learned counsel for the petitioner argued the following three contentions before me : (1) That the notice of demand dated January 30, 1963, issued under section 210 of the Income-tax Act, 1961, was illegal, because the same was based on the assessment order dated December 31, 1962, which was only a provisional assessment and not a regular one. It was well established that a demand for advance payment of tax under section 210 could not be made on the basis of provisional assessment ; (2) that this notice was invalid also because the income-tax authorities had demanded the payment of the entire advance tax by March 1, 1963, in contravention of the proviso to section 211(1) of the Income-tax Act, 1961, according to which tax could have been paid by March 15, 1963 ; and (3) that after the filing of the writ petition, the income-tax authorities had made the provisional assessment for the financial year 1962-63, and, consequently, the impugned notice dated January 30, 1963, had become infructuous, because after the making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd documents, if any, accompanying it. This assessment has to be made strictly on the basis of the assessee's return. For instance, if the assessee claims, however wrongly, in his return that certain income is exempt from tax, the provisional assessment cannot purport to bring such income to charge. There is no power to make any assessment under this section unless a return has been filed by the assessee or by the firm in which the assessee is a partner (vide Kanga's Income-tax Act, 5th edition, volume I, page 627). Regular assessment is governed by the provisions of section 143 of the Income-tax Act, 1961, which is equivalent to section 23 of the Income-tax Act, 1922. Under this section, the total income of the assessee has to be determined and on the basis of the same the tax is levied. The difference between the two types of assessments is that in the case of the former, the Income-tax Officer merely assesses the tax on the basis of the income shown by the assessee. At that stage, he does not determine as to whether that income has been correctly or incorrectly shown by him. He will take that figure to be correct and levy the tax thereon. While in the case of a regular assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be taken after the firm's assessment could not make a final assessment a provisional one. " Similarly it was observed by Falshaw J. in a Bench decision of this court in Dharam Vir Virmani v. Commissioner of Income-tax : " It was suggested on behalf of the assessee that if at the time of the original assessment the Income-tax Officer would not accept the assessee's figures regarding his income from shares in the partnerships, it was his duty to postpone the completion of the assessment, if necessary for several years, to wait for the assessment of the partnerships. But in my opinion there must be so many cases of this kind that such a course would result in great inconvenience both to the assessees and to the revenue department and on the whole I am inclined to take the view that there is nothing illegal in the Income-tax Officer's concluding the assessment at the time to the best of his ability on the available data, even in a case where he may have reason to suspect that on full and reliable information becoming available the assessment may have to be reopened. " It is thus clear that the Income-tax Officer in the present case by his order dated December 31, 1962, was m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the remaining income of Rs. 3,05,213.00, being the share from Messrs. Roshan Lal Kuthiala, Pathankot, was payable on the 1st of March. The petitioner was further informed that, in order to avoid unnecessary controversy, he was allowed to pay the entire demand by 15th March, 1963 (true copies of the petitioner's letter and the respondent's reply thereto are attached as annexures R-1 and R-2 hereto). It is correct that the petitioner made representations to the Commissioner of Income-tax also in this connection but the Commissioner declined to interfere in the matter. " The contention of the learned counsel for the petitioner is that after issuing the demand notice, the department could not change the date of payment of the tax from March 1, 1963, to March 15, 1963. No provision of law or any decided case was, however, brought to my notice in support of this contention. The department, on the other hand, informed the petitioner that his contention was incorrect, but in order to avoid any unnecessary controversy on this score, they changed the date from March 1, 1963, to March 15, 1963. It is significant to mention that this point was not taken in the writ petition, but w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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