9911796707
TMI Blog1960 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... se, this plea of limitation was open to the assessee to be taken in the subsequent proceedings after the cancellation of the said assessment order and whether the reassessment order passed on November 17, 1954, is bad in law ? The facts of the case giving rise to the two questions under reference are not in dispute. The petitioner is a private limited company carrying on the business of mining coal at Birsinghpur in district Shahdol, which formed a part of the erstwhile State of Vindhya Pradesh. Since the company's income for the assessment year 1943-44 (account year 1942-43) had escaped assessment, a notice under section 34 of the Income-tax Act (hereinafter referred to as the Act) was served on the petitioner on March 15, 1952, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 27 ibid, was allowed and the assessment was cancelled. Thereupon, on December 22, 1953, the appeal was dismissed as infructuous. In due course, a fresh assessment in accordance with the provisions of section 23 of the Act was made on November 17, 1954, and the taxable income was determined to be ₹ 45,000. In the appeal filed before the Appellate Assistant Commissioner, the petitioner challenged the fresh assessment dated November 17, 1954, Inter alia, on the ground that it was bad in law because the original assessment dated March 21, 1953, was made out of time, that is, more than one year after the date of service of notice under section 34 of the Act. The Appellate Assistant Commissioner did not accept the contention relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court and obtaining an order of injunction on the Income-tax Officer. If he had taken such an objection before the Appellate Assistant Commissioner in his appeal against the original assessment, the Appellate Assistant Commissioner would have had to go into the question and come to a conclusion whether or not the period for which the injunction on the Income-tax Officer was operative was or was not liable to be excluded in computing the time within which that assessment had to be made. As the matter stands at present, there is a proper and valid order of reassessment made under section 27 and to such an order no time limit is applicable as is expressly provided in the second proviso to subsection (3) of section 34 referred to above. We w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n one year of the date of service of notice on the petitioner (March 15, 1952). It was, however, made on March 21, 1953. On behalf of the Department, it is contended that, since the original assessment was cancelled and a fresh assessment was made under the provisions of section 27 of the Act, the second proviso to sub-section (3) of section 34 was attracted. That the Income-tax Officer purported to make a fresh assessment under section 27 ibid, is obvious. The point is whether, in the circumstances of the case, he could validly do so. In our opinion, a fresh assessment under section 27 must follow the cancellation of a valid original assessment. If the original assessment itself was without jurisdiction in the sense that the income asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it must be regarded as invalid. It is, however, urged that the petitioner itself moved the High Court under article 226 of the Constitution to secure an interim writ of prohibition and had thereby disabled the Income-tax Officer from proceeding with the assessment and, therefore, the limitation prescribed for completing the assessment should be regarded as extended by the time during which he could not act. In our opinion, equitable considerations cannot be imported for the purpose of extending limitation in a taxing Act. Rowlatt, J., observed in Cape Brandy Syndicate v. Inland Revenue Commissioners [1921] 1 K.B. 64: ... in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Byramji and Co. v. CIT [1943] 11 ITR 286 where the High Court interfered with the discretion of the Appellate Tribunal in declining to entertain a similar question of law as an additional ground of appeal. Our answer to the questions referred to us are these. The original assessment dated March 12, 1953, was barred by time. That being so, the fresh assessment dated November 17, 1954, is bad in law. In the circumstances of this case, it was open to the petitioner to raise the plea of limitation even though that plea had not been raised before the Income-tax Officer in proceedings relating to the original assessment or the fresh assessment under section 27 of the Act. Before we part with this case, we must observe that when the limi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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