9911796707
TMI Blog1977 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... artition under s. 25A of the Indian I.T. Act, 1922. In the alternative, he claimed partial partition of some of the joint family properties. Both these claims were initially negatived and the entire income was assessed in the hands of the HUF. The return filed by the petitioner in his individual capacity was finalised by holding that there was no income assessable in his individual capacity. The HUF went up in appeal, and, ultimately, the Tribunal accepted that there had been a partial partition of some of the properties with effect from the different dates. In respect of the other sources of income, the matter was taken up in reference and this court in a decision reported in Mahadeo Prasad Rais v. ITO [1972] 84 ITR 48, held that the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase in which the Board had accorded its sanction, and after perusal he gave up the point that the Board had accorded the sanction mechanically or without the application of mind. He also stated that he was not questioning the department's case that the notices have been issued in order to bring the income to assessment because of findings recorded in the appellate orders in respect of the HUF. He stated that this question would be agitated before the departmental authority when the proceedings for reassessment are taken. This point is, therefore, left open. The only question pressed at the hearing before us was that the notices were barred by limitation. It is apparent that for the assessment years 1953-54 to 1961-62, the proceedings we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of s. 149 or s. 150. Further, to such notice " all the provisions of this Act shall apply accordingly ". Section 149 lays down the period of limitation for notices under section 148. Section 150 makes provisions for cases where the assessment is in pursuance of an order on appeal, reference or revision. This is the provision relied on by the revenue. It says: " 150. (1) Notwithstanding anything contained in section 149, the notice under section 148 may be issued at any time for the purpose of making an assessment or reassessment or recomputation in consequence of, or to give effect to any finding or direction contained in an order passed by any authority in any proceeding under this Act by way of appeal, reference or revision ....." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The court held that this contention was unsustainable because the AAC's order was not passed under the 1961 Act, the department cannot hence take any support from s. 150(1) of the Act of 1961. This case is distinguishable. There, a notice under s. 34 of the Act of 1922 was issued on November 7, 1958, and the proceedings thereon were pending when the 1961 Act came into force. The court expressly held that that being so it was not open to the ITO to issue notices under s. 148 of the 1961 Act. This is clearly so in view of sub-cl. (i) of cl. (d) of s. 297(2) under which if a notice under s. 34 had been issued the proceedings had to be completed under the repealed Act as if the 1961 Act had not been passed. Section 148 of the Act of 1961 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of assessment. The substantive law to be applied for determining the liability to tax must necessarily be the law under the old Act, for that is the law which applied during the relevant assessment year and it is that law which must govern the liability of the parties. The Supreme Court thus emphasised that the last part of cl, (ii) imported only the machinery provisions of the 1961 Act. The substantive provisions of the old Act would continue to be applied. We, however, find that ss. 149 and 150 have expressly been made applicable. Section 150(1) corresponds to the second proviso to sub-s. (3)of s. 34 of the 1922 Act. If it be held that on its terms s. 150 is inapplicable, then in view of the aforesaid pronouncement of the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court held that it is not required that all the sections of the new Act relating to recovery and collection should be literally applied but only such of the sections will apply as are appropriate in the particular case and subject, if necessary, to suitable modifications. In other words, the procedure of the new Act will apply to cases contemplated by s. 297(2)(j) of the new Act mutatis mutandis. We may refer to two other decisions of the Supreme Court in relation to cl. (g) of s. 297(2). Clause (g) provided: "any proceeding for the imposition of a penalty in respect of any assessment for the year ending on the 31st day of March, 1962, or any earlier year, which is completed on or after the 1st day of April, 1962, may be initia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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