9911796707
TMI Blog1984 (9) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ends on October 31, 1972. The assessee had filed return disclosing a total income of Rs. 1,08,870. The Income-tax Officer completed the assessment under section 143(3) of the Act on a total income of Rs. 1,24,461 by his order dated March 9, 1976. Against this order, the assessee preferred an appeal before the Appellate Assistant Commissioner who by his order dated April 18, 1978, allowed the appeal. After completion of the original assessment, the Income-tax Officer received certain audit objections that in the original assessment, expenses allowed in respect of gratuity, bonus, performance tax, repairs and maintenance and also in respect of amount written off were not properly allowed. Consequent to the audit objections, the Income-tax Officer made certain enquiries from the assessee and thereafter he discovered reasons for disallowance of some of the items. According to him, items totalling to Rs. 82,843 should have been disallowed. He, therefore, initiated proceedings under section 147(b) of the Act and issued a notice under section 148 on February 28, 1978. The Income-tax Officer was satisfied that the allowance on account of bonus, as claimed, was reasonable. He, however, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had rightly acted under section 147(b). According to the Tribunal, the Income-tax Officer, after the audit objections, had actually obtained certain details and evidence from the assessee and came to the conclusion that certain disallowance should have been made in the computation and, therefore, took action under section 147(b). On merits, the Tribunal held that as it has held that the action under section 147(b) was proper, it chose to remand the matter to the Commissioner of Incometax (Appeals) for consideration on merits after affording an opportunity of being heard to both the parties, Thereafter, at the instance of the assessee, the Tribunal made this reference. Learned counsel for the assessee contended that the opinion expressed in the audit objection could not be said to be any information on the basis of which satisfaction could be recorded as contemplated under section 147(b) of the Act. It was also contended that whatever enquiries were made by the Income-tax Officer on which the Tribunal placed reliance is nothing but reconsideration of the question which was considered earlier and what the Income-tax Officer felt was that the view taken earlier was not right. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that the Income-tax Officer did not act on the audit objections only but thereafter made enquiries from the assessee itself, called its account books, examined them and it is only thereafter that he prepared his report which was sent to the Commissioner. However, learned counsel frankly conceded that in the report, the Income-tax Officer expressed the view that it was not possible to take action under section 147 and, therefore, he placed the matter before the Commissioner for taking action under section 263 ; but he contended that ultimately in the order-sheet when the Income-tax Officer passed order starting proceedings under section 147, he has expressed satisfaction on the facts which form part of his report to the Commissioner and, therefore, it could not be said that there was no information on the basis of which action could have been taken under section 147(b) of the Act. Having gone through the order passed by the Income-tax Officer starting proceedings under section 147, which has been quoted above, and the report submitted by him to the Commissioner which, admittedly, is after making all preliminary enquiries, clearly disclose that no new facts were found nor w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 1.-For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely : (a) where income chargeable to tax has been under-assessed; or (b) where such income has been assessed at too low a rate ; or (c) where such income has been made the subject of excessive relief under this Act or under the Indian Income-tax Act, 1922 (XI of 1922); or (d) where excessive loss or depreciation allowance has been computed. Explanation 2.-Production before the Income-tax Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Income-tax Officer will not necessarily amount to disclosure within the meaning of this section." The aforesaid section clearly indicates that if the Income-tax Officer in consequence of information in his possession has reason to believe that income chargeable to tax has escaped assessment, then only action under section 147(b) can be taken. Direction of the Commissioner of Income-tax or the satisfaction of the Commissioner of Income-tax cannot be substituted in place of the satisfaction on the basis of the information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpretation of statute, and may in particular cases extend to a definition of the status of a party or the legal relationship between parties, the declaration being rendered by a competent judicial or quasi-judicial authority empowered to decide questions of law between contending parties. The declaration or exposition is ordinarily set forth in the judgment of a court or the order of a tribunal. Such declaration or exposition in itself bears the character of law. In every case, therefore, to be law, it must be a creation by a formal source, either legislative or judicial authority. A statement by a person or body not competent to create or define the law cannot be regarded as law. The suggested interpretation of enacted legislation and the elaboration of legal principles in text books and journals do not enjoy the status of law. They are merely opinions and, at best, evidence in regard to the state of the law and in themselves possess no binding effect as law. The forensic submissions of professional lawyers and the seminal activities of legal academics enjoy no higher status. Perhaps the only exception is provided by the writings of publicists in international law, for, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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