9911796707
TMI Blog1960 (4) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... his income in respect of the assessment year 1950-51. This return was obviously filed under section 22(3) of the Income-tax Act, as up to that date no order of assessment had been made in the case of the petitioner in respect of the assessment year 1950-51. The Income-tax Officer, however, ignored the return and, having obtained the sanction of the Commissioner, he proceeded to issue notice under section 34(1) of the Income-tax Act to the assessee. He then took proceedings in pursuance of that notice and made an order of assessment. That order was taken up in appeal to the Appellate Assistant Commissioner and then to the Income-tax Appellate Tribunal. The Tribunal accepted the appeal and set aside the proceedings under section 34 on the ground that those proceedings were void, having been taken after the return had been filed under section 22(3) of the Income-tax Act. The Commissioner of Income-tax then moved the Tribunal to refer the question of law to the High Court as to whether the proceedings under section 34 of the Income-tax Act were valid or void in view of the return having been filed under section 22(3) of the Income-tax Act. It was at this stage that the opposite party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or reassessment in cases falling within clause (a) of sub-section (1) of section 34 of the Income-tax Act. In this case, the order of assessment is sought to be brought within the period of limitation on behalf of the opposite party on the ground that it was passed within eight years from the end of the assessment year and is an order of assessment under section 23 to which clause (c) of sub-section (1) of section 28 applies. On behalf of the petitioner, it has been urged that this is not a case to which clause (c) of sub-section (1) of section 28 applied; and, in holding that that provision did apply, and thus coming to the finding that an order of assessment could be made within eight years from the end of the year of assessment, the Income-tax Officer, opposite party, exercised jurisdiction not vested in him. It appears, however, that the argument advanced on behalf of the petitioner ignores the circumstance that the limitation prescribed under section 34(3) of the Income-tax Act applies only at, the stage of passing the order of assessment and does not in any way affect the validity of the proceedings taken for assessment prior to the making of the order of assessment. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the particulars of his income in respect of these two items was incorrect and, in exercise of our writ jurisdiction under article 226 of the Constitution, we are competent to re-examine the question and decide whether the decision given by the Income-tax Officer is correct or incorrect. It was urged that, on the determination of this question depended the decision of the question as to whether the Income-tax Officer acted in exercise of jurisdiction vested in him or in excess of that jurisdiction. This contention raised before us ignores the circumstance that the limitation prescribed by section 34(3) of the Income-tax Act does not govern the jurisdiction of the Income-tax Officer to take quasi-judicial proceedings for assessment, but merely governs his power to pass an order of assessment. As has been held earlier, the proceedings for assessment which were being taken under sections 22 and 23 of the Income-tax Act on the return which had been filed by the petitioner under section 22(3) of the Income-tax Act were not barred by time or otherwise illegal. While taking those proceedings the Income-tax Officer was already functioning as a quasi-judicial tribunal so that he was competen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged by the petitioner is one which the Income-tax Officer was required to decide in exercise of jurisdiction vested in him and the jurisdiction of the Income-tax Officer on such a point could be challenged under article 226 of the Constitution only on the ground that it suffered from a manifest error apparent on the face of the record. In this connection, reliance is placed on two recent decisions of the Supreme Court in Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam [1958] SCR 1240, and Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137. It does not appear to be necessary to refer to earlier decisions of the Supreme Court or of other courts, as in these two latest cases the Supreme Court has fully clarified all the earlier decisions. In the case of Nagendra Nath-Bora v. Commissioner of Hills Division and Appeals, Assam [1958] SCR 1240, it was held that: So far as we know, it has never been contended before this court that an error of fact, even though apparent on the face of the record, could be a ground for interference by the court exercising its writ jurisdiction. No ruling was brought to our notice in support of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that : It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error ; it must be one which must be manifest on the face of the record. These are the principles which have to be applied in the present case. In this case the application of these principles would show that the only ground on which the petitioner could seek relief from this court in the present petition was the contention raised by the petitioner that the decision of the Income-tax Officer about the applicability of clause (c) of sub-section (1) of section 28 of the Income-tax Act suffers from a manifest error of law apparent on the face of the record. Learned counsel for the petitioner, in these circumstances, urged before us that on the material available in this writ petition, we should record a finding that the decision of the Income-tax Officer on this point suffers from a manifest error apparent on the face of the record. As has been mentioned by us earlier, the Income-tax Officer held that clause (c) of sub-section (1) of section 28 was applicable on two grounds, viz., concealment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer who took no steps on its receipt to communicate to the petitioner that the receipt was income liable to tax or that there was even any doubt that this receipt could be taxable income. Having given that information to the Income-tax Officer long before he filed the return, the petitioner, when filing the return, omitted to mention this receipt in the return. It is urged that this omission was clearly bona fide as the petitioner had already given all the facts to the Income-tax Officer concealing no fact at all and that he did not consider it necessary to include this item in the return as this receipt was not of the nature of income liable to tax. With regard to the second item of ₹ 12, it is admitted that this amount was received by the petitioner by a credit entry in his current account with the United Commercial Bank Limited, Calcutta, on December 23, 1949. There is an explanation in the affidavit filed in support of the writ petition before us to the effect that this amount was left out by inadvertence and is too trivial. These are the grounds on which the petitioner challenges the finding recorded by the Income-tax Officer in his order of assessment that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts, which were before the Income-tax Officer, there was enough material to record the finding that the petitioner had concealed particulars of this income or whether there was no material to record such a finding. These are all questions of fact which require a detailed examination and discussion of the relevant facts and circumstances and we do not, therefore, think that we can go into these questions when exercising our jurisdiction under article 226 of the Constitution in view of the decisions of the Supreme Court cited above. It is also to be noticed that the petitioner is already seeking his alternative remedies by an application under section 27 of the Income-tax Act and by an appeal before the Assistant Commissioner, both of which proceedings are directed against this very assessment order which has been challenged by this writ petition and it is in those proceedings only that the correctness of the finding recorded by the Income-tax Officer can be appropriately examined. It is further to be kept in view that the powers of the appellate court are much wider than the powers of a court exercising writ jurisdiction under article 226 of the Constitution, and the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined this point and we are unable to hold that, on the material provided, it is manifest that proper opportunity was denied to the petitioner. The two notices issued on the 13th February, 1959, called upon the petitioner to appear personally and to produce or to arrange for production of certain books of account or documents on the 20th February, 1959. There was a week's time, but instead of producing the documents the petitioner, according to his affidavit, asked for adjournment of the case. The ground for asking for adjournment mentioned in the affidavit filed by the petitioner was that the petitioner was out Of station. Even if he was out of station, it was for the petitioner to arrange for the production of the documents needed, which he could surely have done when he was able at least to make an application for adjournment of the case. No satisfactory explanation is forthcoming in the petition why this period of seven days was not sufficient. Then the affidavit does not mention what was the length of the adjournment sought. An adjournment for three days was actually granted. No circumstances are shown in the affidavit to indicate that this adjournment was too short. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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