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TMI Blog1985 (8) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... f amalgamation sanctioned by this court, has merged in an Indian company called M/s. Eskey Ltd., which has now come on record as the petitioner in the place of the original petitioner. But in order to appreciate the questions raised, these cases will be examined as if there was no amalgamation and the foreign company will hereafter be referred to as the assessee. For the assessment year 1979-80 relevant to the accounting year ending on November 30, 1978, the assessee company filed its return under section 5 of the Companies (Profits) Surtax Act, 1964 (Central Act No. VII of 1964) (" the Act "), before the Income-tax Officer, Company Circle-I, Bangalore (Income-tax Officer) (annexure A), inter alia, disclosing that it was not liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms. But, during the pendency of this petition, the Income-tax Officer on June 29, 1980, made his regular assessment for the aforesaid assessment year under section 6 of the Act which has been separately challenged in an appeal by the assessee under the Act. For the succeeding assessment year 1980-81, the assessee filed its returns before the Income-tax Officer under the Act. But, the Income-tax Officer, as in the past, issued a notice on February 26, 1981 (annexure A), to the assessee proposing to make a provisional assessment for the aforesaid year on the basis of the computation detailed therein. In Writ Petition No. 3959 of 1981, the assessee, challenging the constitutional validity of section 7 of the Act, has challenged the said not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y one of the objections and the principles enunciated in Jaipur Udyog Ltd.'s. case [1969] 71 ITR 799 (SC) have no application. The Act has been enacted to impose a special tax called " surtax on the profits of certain companies. Section 2 of the Act defines certain terms that generally occur in the Act. Section 3 deals with tax authorities who administer the Act. Section 4 is the charging section of the Act. Section 4 provides for levy of surtax on the chargeable profits of the previous year of the companies subject to various deductions at the rates specified in the Third Schedule to the Act. Section 5 of the Act requires the companies governed by the Act to file their returns under the Act. Section 6 provides for making regular assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see agrees to the proposed provisional assessment, the Income-tax Officer may, after taking into account the objections, if any, made under sub-section (2), make provisional assessment, and shall furnish a copy of the order of assessment to the assessee: Provided that assent to the amount of the provisional assessment, or failure to make objection to it, shall in no way prejudice the assessee in relation to the regular assessment. (4) There shall be no right of appeal against a provisional assessment made under this section. (5) After a regular assessment has been made, any amount paid or deemed to have been paid towards the provisional assessment made under this section shall be deemed to have been paid towards the regular assessment; a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n section 7 of the Act, then the same will be opposed to the language of that provision and defeat the very scheme and object of the Act. Subsection (4) of section 7, which expressly prohibits an appeal, cannot be relied upon to restrict the power conferred in the preceding sub-sections of that section. Every provisional assessment and every payment made thereon is subject to final assessment to be made under section 6 of the Act. In Jaipur Udyog Ltd.'s case [1969] 71 ITR 799, the Supreme Court interpreting section 141 of the Income-tax Act, 1961 (I.T. Act), that was then in force, had expressed that the language of that provision did not permit an Income-tax Officer to make an adjudication in making a provisional assessment under the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eject the contention of Sri Sarangan. An examination of the proceedings culminating in the provisional assessment challenged in Writ Petition No. 4849 of 1980 shows that the same is in conformity with section 7 of the Act. Even otherwise, when a final assessment has been made, there is hardly any ground to interfere with the same. In Writ Petition No. 3959 of 1981, the petitioner has only challenged the validity of the notice issued by the Income-tax Officer proposing to make a provisional assessment under section 7(2) of the Act. Earlier, I have held that it is open to the assessee to raise all such objections as are open to it under the Act which the authority is bound to examine and decide on. But before that, there is no justification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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