9911796707
TMI Blog1978 (3) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... posed by the IAC under s. 271(1)(c) read with s. 274(2) of the I.T. Act, 1961. In the appeal preferred by the assessee against the reassessment, the AAC upheld the addition of Rs. 1,86,061 but gave a relief of Rs. 6,000 in respect of the addition of Rs. 51,211. Thereafter, further appeals were preferred by the assessee against the order of the AAC as also against that of the IAC. The Tribunal went into the question of the validity of the reassessment made under s. 147(a) of the I.T. Act, 1961, and found that the ITO had not recorded any reasons to establish his belief that there was any omission or failure on the part of the assessee to disclose fully and truly all material facts. It was found further that all that the ITO had recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee: " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in sustaining the addition in respect of the addition of Rs. 45,711 having held the reassessment to be invalid in respect of the addition of Rs. 1,86,061 ? The following questions have been referred at the instance of the revenue: " (1) Whether, on the facts and in the circumstances of the case, the Tribunal, having upheld the addition of Rs. 45,711 was justified in holding the reassessment to be invalid in respect of the other addition of Rs. 1,86,061 ? (2) Whether, on the facts and in the circumstances of the case and in view of the fact that the assessee had disclosed in its revised return filed in response to the notice under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invalid, the Tribunal could not sustain the addition of Rs. 45,711 in the same invalid proceedings. He urged that the question raised by the assessee must be answered in its favour. Mr. Bagchi, learned advocate appearing for the revenue, contended on the other hand that the contention of the assessee raised a new and different question. He submitted that the Tribunal has nowhere held that the reassessment was wholly invalid. Mr. Bagchi drew our attention to the fact that before the AAC the only contention of the assessee was that there should be a set-off of Rs. 12,000 from the amount added, that is, Rs. 51,211. The assessee did not claim that the entire sum should be deleted. On the basis of the submission of the assessee, the AAC allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of this court observed that there could be a waiver as to the machinery of taxation which inures against the subject. Lastly, Mr. Bagchi cited a decision of the Supreme Court in the case of Director of Inspection of Income-tax (Investigation) v. Pooran Mail Sons [1974] 96 ITR 390. In this case the Supreme Court quoted with approval the principle laid down in an English case, Phillips v. Martin (11 NSWLR 153) as follows: " 'Here there is abundant evidence of waiver, and it is quite clear that a man may by his conduct waive a provision of an Act of Parliament intended for his benefit. The caveator was not brought into court in any way until the caveat had lapsed. And now the applicant, after all these proceedings have been taken by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable and either party may waive them without affecting the jurisdiction of the court." On a consideration of the facts and circumstances of the present case, we are unable to accept the contentions of Mr. Bagchi. The question which has been referred at the instance of the assessee and the question No. 1 referred at the instance of the department, both proceeded on the basis that addition on reassessment has been retained and some other addition has been deleted. The deletion has been made on the sole ground that the initiation of the reassessment proceedings were i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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