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TMI Blog1924 (11) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 29 of the Act; and secondly, the Commissioner having initiated proceedings under Section 35 of the Act, if in the course of such proceedings it is discovered that the assessment was under a mistake and that no assessment ought to have been made at all, whether the assessee is entitled to a refund without any application being made on his part, and any other point that he may consider proper. 2. The second of the questions thus formulated for decision assumes first, that proceedings under Section 35 were initiated by the Commissioner and secondly, that the assessment was made under a mistake. But the Commissioner in the case stated has expressed the view that no proceedings under Section 35 were initiated by him at all and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The financial year ends on the 31st March and the tax is assessed on the basis of the previous year's income. The total amount payable upon these five properties was in round figures ₹ 58,000. The assessees were given the option of paying the taxes by instalments. They paid, again in round figures, ₹ 26,000 leaving a balance due of ₹ 32,000. This state of affairs continued up to August 1923 when the Income Tax Officer having received information that the five collieries all belonged to the same firm trading under the name of Trikamjee Jiwan Das whose principal place of business is in Bombay issued a notice on the firm, dated the 13th August 1923, calling upon it to show cause why it should not be assessed at a higher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any such rectification has the effect of enhancing the assessment, the Income Tax Officer shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable, and such notice of demand shall be deemed to be issued under Section 29 and the provisions of this Act shall apply accordingly. 4. In the case stated the Commissioner has pointed out that this section has really no application to the facts under which the Income Tax Officer issued the notice and he states that he informed him of this at an early stage. He also points out that the proper section applicable for the recovery of income tax which has escaped assessment or has been assessed at too low a rate is Section 34 which provides the procedure for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The Commissioner in his case states, The representative of the firm virtually admitted to me that if they had been found liable to assessment in 1922-1923 in Bombay they would not have voluntarily disclosed the fact that all the five Manbhum collieries belonged to them ; and he later on passed an order on the 7th January 1924 rejecting the application for a refund but ordering the proceedings taken by the Income Tax Officer nominally under Section 35, but actually under the powers granted by Section 34, to be dropped. The assessee shortly afterwards applied to him to review his order declining the refund but he refused to do so. An application was then made to him under Section 66(2) for a reference to the High Court which was also rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s power to make orders in the nature of mandamus requiring specific acts to be done or forborne by persons holding a public office, was relied on but this section does not confer the same powers upon this High Court, and Section 66 of the Income Tax Act, which differs in certain material respects from Section 51 of the Act of 1918 which was in force when the case cited was decided, gives the High Court no power over the Income Tax Commissioner except to the limited extent therein provided. The Court, however, by its order considered that it had jurisdiction, and ordered the Commissioner to state a case, which he has done, and it is not competent to this Court now to question the validity of that order. 5. The real question for our determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the best policy. I think that the Commissioner was perfectly justified in the circumstances in refusing to make any rectification or to refund any sums paid under the assessments made. It is not, in the circumstances, necessary to answer categorically the question referred because even if they are both answered in the affirmative that would not dispose of the real questions in issue between the parties. The real question is whether there was in the circumstances of the case, any mistake apparent from the record of the assessment which would entitle the assessee to a refund. In my opinion, there was not. The Commissioner of Income Tax is entitled to the costs of this Reference and we assess a hearing fee of ₹ 200. Foster, J. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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