9911796707
TMI Blog1969 (5) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1958-59 was operative in relation to the reassessments in respect of the previous years ending on December 31, 1954, December 31, 1955, and December 31, 1956, corresponding to the assessment years 1955-56, 1956-57 and 1957-58 ?" The facts are stated in a consolidated statement drawn up for the purpose and they are as follows : The original assessments of the assessee, who derived income by way of dividends on shares and interest on deposits, were completed under section 23(3) of the Act on January 31, 1966, December 27, 1956 and February 28, 1958, for the years corresponding to the assessment years 1955-56, 1956-57 and 1957-58. The residential status adopted in these years by the assessee was "resident and ordinarily resident" person. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings for the year 1958-59 should be considered and the assessment made in accordance with law. The Income-tax Officer was of the view that as the assessee exercised his option after the prescribed date, the declaration cannot have effect on the assessments before this, even though they were taken up under section 34(1)(b) of the Act. He was of the view, that the declaration filed by him could not enure to his benefit for the earlier years and the second proviso to section 17 cannot avail the assessee. In the end he completed the assessment and levied the tax On the total income at the maximum rates laid down under section 17(1) of the Act. On appeal the assessee contended that the revenue had no jurisdiction to reopen as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith reference to years and not to assessments as contended. As the department has chosen to reopen completed assessments, then, according to the Tribunal, those assessments once again have become pending and, therefore, it held that the declaration made before such assessments were completed can be taken advantage of by the assessee. The Appellate Assistant Commissioner having observed that the declaration has to be accepted, as the assessee was prevented by sufficient cause from filing the same earlier, it is not open to the revenue to deny the benefit that normally flows from such a declaration and extending the same even to assessments sought to be reopened under section 34. According to the Appellate Tribunal, the emphasis appears to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed in the first proviso, then such a declaration may be accepted and shall have effect in relation to the assessment for the year in which the declaration is made (if such assessment had not been completed before such declaration), and all assessments thereafter. In the instant case, the declaration was filed during the assessment year 1958-59. It is common ground that for the previous three years, corresponding to the assessment years 1955-56, 1956-57 and 1957-58, the assessments were reopened under section 34. In that sense it is contended that the assessments for the previous years have not yet been completed and that therefore the declaration, though filed later, and which has since been accepted by the revenue, as the assessee showed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability of a non-resident. The proviso gives him the privilege provided he acts in a particular way and in the prescribed manner. If he fails to adopt the course which would enable him to obtain the statutory concession regarding rate, he is to be blamed and he cannot, by circumventing the particularized procedure, evoke the sympathy of the revenue and seek for relief. In the instant case, it is admitted that before the completion of the assessments in their original stage for the three years in question, no declaration, as prescribed under the first proviso to section 17 has been filed. The very foundation of the concession rests upon the filing of a declaration as contemplated by the statute. This declaration is irretrievably connected i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would be a straining of the language if the expression "all assessments thereafter" were to be understood as assessment years thereafter. Apparently, it based its conclusion that, if the revenue chose to reopen the completed assessments, then those assessments should be deemed to be pending. It should not be forgotten that the jurisdiction under section 34 is very limited and it is resorted to by the revenue only in exceptional circumstances and in accordance with the statutory prescription therein. It is not a general provision but an exceptional one. To interpret section 17 in the light of such an exceptional provision in the taxing statute would be to render the text and the plain words of section 17 ambiguous when it is not. If an as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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