9911796707
TMI Blog1983 (9) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... basis for the return was given by the assessee. The ITO completed the assessment on a total income of Rs. 97,511 on March 10, 1966, under s. 143(3) of the I.T. Act (No. XLIII of 1961) (for short the Act')). The Commissioner of Income-tax (CIT) was of the opinion that the ITO ought to have charged while completing the assessment, interest from the assessee under s. 18A(3) of the Indian I.T. Act, 1922 (" the old Act " herein) read with s. 217 of the Act. Section 18A(3) of the old Act provided that the assessee should furnish an estimate of its income in advance and also pay income-tax in advance. The assessee had neither filed an estimate nor paid advance-tax in respect of the assessment year 1961-62. The CIT was of, the opinion that interest was chargeable under the above provision. As the ITO failed to charge such interest, the CIT considered the order dated March 10, 1966, of the ITO to be prejudicial to the interest of the Revenue. He, therefore, initiated proceedings under s. 263 of the Act for revision of the assessment order. The CIT issued a letter dated February 3, 1969, to the assessee asking him to show cause why action should not be taken under s. 263 of the Act for rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the proceedings. It was observed by the CIT that the notice has been served on Shri Rawat Singh, as early as on February 16, 1968, and as such he should have consulted the assessee by March 4, 1968. The CIT did not consider personal service on the assessee necessary. He, therefore, proceeded to decide the matter ex parte. The CIT came to the conclusion that the charge of penal interest under s. 18A(8) of the old Act (s. 217 of the Act) for the assessee's default under s. 18A(3) of the old Act (s. 212(3) of the Act) was mandatory and that the ITO had no discretion to waive or reduce it except to the extent and in the manner provided for in r. 48/40 of the I.T. Rules, 1922/1962. The CIT by its order dated March 6, 1968, directed the ITO to modify the assessment suitably and levy penal interest chargeable under s.18A(8) of the old Act/ section 217 of the Act in accordance with law. An appeal was filed by the assessee to the Tribunal. The Tribunal reached the conclusion by its order dated August 1, 1970, that the notice issued by the CIT has not been properly served and, therefore, the order under s. 263 of the Act cannot be upheld. The reasons given by the Tribunal in support of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he old Act does not in express terms require a notice to be served on the assessee as in the case of s. 34 of the old Act and that s. 33B of the old Act merely requires that an opportunity of being heard should be given to the assessee and the stringent requirement of service of notice under s. 34 cannot, therefore, be applied to a proceeding under s. 33B. Their Lordships agreed with the conclusion drawn by the High Court to the effect that the appellant was given an opportunity of being heard before the CIT. Gila Devi's case [1970] 76 ITR 496 (SC) was followed in CIT v. Electro House [1971] 82 ITR 824 (SC), wherein it was observed (see headnote) : " Unlike section 34, section 33B of the Income-tax Act, 1922, does not require any notice to be issued by the Commissioner before he assumes jurisdiction to proceed to revise an order passed by the Income-tax Officer. The jurisdiction of the Commissioner to proceed under section 33B is not dependent on the fulfilment of any condition precedent. He is not required to give any notice before commencing the inquiry. All that he is required to do, before reaching his decision and not before commencing the inquiry, is to give the assessee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above rule shows that it provides for the manner of service of the recognised agents. Mr. Mehta made reference to 0. V, r. 12, CPC also, which shows that service is to be effected on defendant in person when practicable, or on his agent. According to this rule, summons must be served on the defendant in person unless he has an agent empowered to accept service in which case it would be enough if it is served on him. Oil the basis of 0. III, rr. 2 and 3, and 0. V, r. 12, CPC, Mr. Mehta submitted that service of notice oil Shri Rawat Singh, in the facts and circumstances of the case, was sufficient and that that substantially meets the requirement of opportunity of being heard, as envisaged under s. 263 of the Act. We have already reproduced the power of attorney. It is addressed to the ITO, C-Ward, jodhpur. According to it, in connection with the assessment proceedings for the year 1961-62, Shri Rawat Singh by virtue of the powers conferred under it, can appear before Income-tax Authorities on behalf of the assessee-respondent. The assessee had authorised him to appear on his behalf to file applications, ask for adjournment, produce books, answer queries, and do all those acts, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as a successful party in a civil appeal does not envisage the filing of a review. The vakalatnama should, therefore, be limited to the original assessment, and appeals, if any, pertaining to that assessment till the matter is concluded before the Tribunal. Therefore, the power given to the auditor to represent the assessee did not continue after the assessment is concluded and the cancellation of the registration of the firm is not valid. In the aforesaid case, reliance was placed on Shaik Mohammed Jamil v. Musammat Bibi Tufailan [1921] 63 IC 47, wherein the learned judges of the Patna High Court while considering the provisions of 0. III, r. 5, CPC, held that the ex parte decree could not have been set aside without serving notice upon the plaintiff. On the other hand, learned counsel for the Revenue submitted that the revision partakes the nature of an appeal. He invited our attention to Shankar v. Krishna, AIR 1970 SC 1. Mr. Mehta also placed reliance on Sunder Lal v. Commissioner, Sales Tax [1971] 27 STC 282 (All), wherein revision under s. 10(3B) of the U. P. Sales Tax Act, 1948, was filed and the limitation for the revision under the said provision commenced from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larging the special powers when necessary and only when necessary for that purpose. 4. The deed must be construed so as to include all medium powers necessary for that purpose." It is well settled that the power of attorney given to an agent should be construed strictly and from that power of attorney only such authority which has been conferred expressly or by implication should be taken consideration. Reference may be made to a Full Bench decision of the Nagpur High Court in Jiwibai v. Ramkuwar Shrinivas Murarka Agarwala, [1947] AIR 1947 Nag 17. The power of attorney given to Shri Rawatsingh was in respect of the assessment year 1961-62 and the proceedings contemplated by that power of attorney are assessment proceedings of the assessment year 1961-62 and the proceedings relating to appeal from the assessment order pertaining to the assessment year 1961-62. The authority given by this power of attorney was for the purposes of putting appearances, filing of applications, seeking adjournments, production of account books, answering of queries and all other acts necessary in connection with the assessment proceedings or appeal proceedings relating to the assessment year 1961-62. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
