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TMI Blog2006 (8) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 - Judge(s) : RANJAN GOGOI. JUDGMENT Ranjan Gogoi J.-Five identical demand notices, each dated June 21, 2001, issued under section 23 of the Assam Agricultural Income-tax Act, 1939 (hereinafter referred to as "the Assam Act"), in respect of the assessment years in question, details of which will be noticed later, are the subject matter of challenge in the present writ application. Another notice dated February 28, 2001, issued under section 36(3) of the Assam Act proposing levy of penalty is a related aspect of the challenge made in the present writ application. The petitioner company which is engaged in the manufacture and sale of tea has assailed the aforesaid demand notices as well as the notice proposing to levy penalty on two principal grounds. Firstly, it is contended that the assessments under the Income-tax Act (hereinafter referred to as "the Central Act") following which the assessments under the Assam Act are required to be made, though finalised by the primary authority, appeals have been filed either by the petitioner-assessee or by the Revenue wherein orders have been passed requiring revision of the assessments under the Central Act as made by the primary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year 1990-91 is concerned, Dr. Saraf has submitted that the assessment of the petitioner to income-tax stands on a similar footing inasmuch as the learned Appellate Tribunal by its order dated November 27, 1998, had remitted the matter to the first appellate authority, i.e., the Commissioner of Income-tax (Appeals) for a de novo decision. For the assessment year 1991-92 the position is the same and the matter is presently pending before the Commissioner of Income-tax (Appeals). In so far as the assessment years 1993-94 and 1994-95 are concerned, according to Dr. Saraf, the correctness of the assessments made by the primary authority is presently pending in second appeal before the Income-tax Appellate Tribunal. On the said facts Dr. Saraf has contended that the Central assessment; i.e., the assessment under the Income-tax Act not having been finalized as yet and the assessments made by the primary authority having been interfered with by the appellate authority in some of the assessment years in question, the assessments under the Assam Act cannot be understood to have attained finality in law in order to justify the demand notices issued. The fundamental basis on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e averments made in the affidavit filed on behalf of the State to the effect that no revisions in the assessments of the petitioner under the Income-tax Act have been made has been placed before the court by Sri Dubey. Sri Dubey has further contended that, according to the petitioner, the appeal proceedings against the assessments made under the Central Act are still pending and no final orders have been passed in such proceedings. If that be so the assessments made under the Central Act by the primary authority will not call for any revision/rectification. According to Sri Dubey, unless the appeal proceedings are finalised and revisions, as may be required to be carried out in the assessments under the Central Act are actually made the assessments under the Assam Act will continue to hold the field. Sri Dubey, learned counsel for the respondents, has further argued that in so far as the second limb of the arguments advanced on behalf of the petitioner is concerned, it cannot be understood that merely because refunds under the Assam Act are pending for subsequent assessment years no demand of tax for the preceding assessment years can be raised. In this regard, Sri Dubey has cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner, not being satisfied with the relief granted by the learned Commissioner of Income-tax (Appeals), had approached the learned Tribunal in second appeal for further relief. Such approaches to the learned Tribunal were made in the years 1998 and 1999. What has happened thereafter is not known. An order of assessment passed by the primary authority if modified in appeal is liable to correction/rectification in the light of the appellate order. The Income-tax Act and the rules framed thereunder do not contemplate any particular stage at which such correction/rectification is required to be made. In other words what is being sought to be emphasised is that under the statute necessary correction/rectification may be required to be made after completion of each stage of the appeal proceedings as contemplated under the Act. Such a situation envisaged by the statute not only has the effect of keeping an assessment in a constant state of flux but also has its own repercussions on consequential assessments that may be required to be made as, in the present case, under the Assam Act. However, as the matter pertains to the sphere of legislative wisdom, the court does not consider it app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultural income gets enhanced by virtue of the revision of the income under the Income-tax Act, the provisions for refund contained in section 39 of the Assam Act may apply to the reverse situation. The petitioner in the present case does not appear to have resorted to the provisions contained in section 20D of the Assam Act. For all the aforesaid reasons, in the facts stated above, the first argument advanced on behalf of the petitioner-assessee cannot have the approval of the court. Coming to the second argument advanced, the same would hardly need to detain the court. I have read and considered the several communications enclosed to the writ petition on the basis of which the petitioner contends refund to be due to it under the Assam Act in respect of certain subsequent assessment years. The provisions for refund are contained in Chapter VI of the Assam Act and refunds are to be granted on completion of a proceeding in this regard as contemplated by the Act. The documents enclosed by the petitioner contain mere assertions made by it to the effect that excess tax has been paid under the Assam Act and refund is due. No order of refund as contemplated by the Act has been placed be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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