9911796707
TMI Blog1979 (2) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ment years 1971-12, 1972-73 and 1974-75. Exhibit P-8 is the common order dated March 29, 1975, passed by the second respondent, disposing of the appeals filed against Exs. P-5, P-6 and P-7 orders. Exhibit P-10 is the order passed by the 3rd respondent on August 11, 1977, disposing of the revisions filed against Ex. P-8 order. The facts relevant for the purpose of this writ petition could be briefly stated as follows: The petitioner and his six sons purchased certain properties as per document No. 1517/61, dated August 28, 1961, for a sum of Rs. 63,000. In the assessment orders for the years 1966-67, 1967-68 -and 1968-69, the petitioner was assessed as an individual. Against the assessment orders. the petitioner preferred appeals which wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these orders appeals were preferred by the petitioner, and they were disposed of by the second respondent by Ex. P-8 order dated March 29, 1976, holding that the petitioner was to be treated as an individual and the income derived by his minor children should be, added to his. income . and assessed as in his hands. Against this order, the petitioner preferred revisions before the third respondent who disposed of them by Ex. P- 10 order dated August II, 1977, confirming Ex. P-8 order passed by the second respondent. In this writ petition, as has already been stated, the challenge is directed against Exs. P-5, P-6, P-7, P-8 and P-10 orders. Sri U. P. Kunikullaya, counsel for the petitioner, submitted that the impugned orders have been pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to one party to reopen the matter. But if he wants to do so, there should be facts which would entitle him to do it. If fresh facts come to light which on an investigation would entitle the Income-tax Officer to come to a different conclusion from that of his predecessor, we think he is entitled to reopen the question. But if there are no fresh facts, it is difficult to see how he can arbitrarily go behind the finding of his predecessor. The same principles of natural justice or judicial dealing which courts impose upon Income-tax Officers would prevent them capriciously setting aside the orders of their predecessors based on enquiry. " This decision of the Full Bench of the Madras High Court has been followed in a recent Division Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing passage occurring in New Jehangir Vakil Mills Co. Ltd. v. CIT [1963] 49 ITR 137 (SC), 142: " The extent to which a decision given by an Income-tax Officer for one assessment year affects or binds a decision for another year has been considered by courts several times and speaking generally it may be stated that the doctrine of res judicata or estoppel by record does not apply to such decisions; in some cases it has been held that though the Income-tax Officer is not bound by the rule of res judicata or estoppel by record, he can reopen a question previously decided only if fresh facts come to light or if the earlier decision was rendered without taking into consideration material evidence, etc." Sri Kunikullaya also relied on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous years, the assessing authority is not entitled to assign a new status to the assessee contrary to what has been assigned after due contest and enquiry in the previous years under Exs. P-2 to P-4 orders for the assessment years 1966-67, 1967-68 and 1968-69. I, therefore, hold that the decision taken by respondents Nos. 1 to 3 in Exs. P-5, P-6, P-7, P-8 and P-10 orders, assigning a status different from what was assigned to the assessee in Exs. P-3 and P-4 orders, is not warranted and, therefore, those orders are liable to be quashed. The Government Pleader has raised a contention that the petitioner, if aggrieved by Ex. P-10 order of the 3rd respondent, should have sought reference of the question to this 'court under s. 60 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1960] 40 ITR 586 (Ker), wherein construing the provisions of s. 109(2) and the proviso to s. 43 of the Cochin I.T. Act, it has been held that as a result of the proviso to S. 43, when the Commissioner has dismissed the application for revision, the assessee has no right to obtain a reference under S. 109(2) of the Cochin Act. On a parity of reasoning, this ruling squarely applies to the provisions contained in S. 60(2) of the Kerala Agrl. I.T. Act also. 1, therefore, reject the contention of the Government Pleader that the petitioner has an effective alternate remedy and, therefore, this court should not interfere in exercise of the jurisdiction under art. 226 of the Constitution. For the foregoing reasons, the writ petition is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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