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TMI Blog1979 (3) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner No. 1 completed the assessment on a net loss of Rs. 8,382. As a result of the Voluntary Capital Disclosure Scheme launched by the Government of India, the assessee disclosed suppressed income to the tune of Rs. 45,000. After some negotiations with petitioner No. 1, the assessee increased the disclosure to Rs. 50,000. Petitioner No. 1 not being satisfied with the disclosure made by the assessee made enquiries and then informed the assessee that the concealed income was much more. The assessee disagreed. After investigating into the matter, the ITO ultimately made the assessment by holding that the concealed income for the year was Rs. 85,937. The assessee appealed. The AAC held that the information possessed by the ITO against the assessee had not been disclosed to it and no opportunity had been provided to it to rebut the same. In the view taken by him, the AAC remanded the matter to the ITO for a further report. After having entered into a series of correspondence with the assessee, the ITO submitted a report consequent on the order of remand. The AAC ultimately dismissed the appeal of the assessee. The assessee appealed to the Tribunal at Allahabad, but failed. Ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 12th December, 1973, was mala fide and against the judgment of this court dated 8th August, 1973 (Gargi Din Jwala Prasad v. CIT [1974] 96 ITR 97). The petition was dismissed in limine in the following terms: " We find no substance in this petition. It is accordingly rejected." The facts which further emerge from Civil Misc. Writ No. 517 of 1974 and the counter-affidavits filed on behalf of opposite party No. 2 are that the assessee had made an application dated 8th January, 1972, addressed to the Secretary, Government of India, Ministry of Law and justice, New Delhi, requesting for the grant of Government sanction under s. 197 of the Cr. PC read with art.367(1) of the Constitution for prosecution of Sri T. D. Sugla, Judicial Member of the Income-tax Appellate Tribunal, Allahabad, under s. 219 of the Indian Penal Code. The request was turned down on the 23rd May, 1972, by the Government. After the dismissal of Civil Misc. Writ No. 517 of 1974, by this court on the 21st January, 1974, the assessee on the 25th February, 1974, filed an application under s. 35 of the Act for the rectification of an alleged mistake apparent on the face of the record in the order dated 12th Decemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re had been unexplained laches on the part of the petitioners. It has been brought to our notice that the order under challenge was passed on the 30th September, 1974, while the petition itself was presented in this court on the 15th January, 1975. The petition thus was filed in this court nearly three and a half months after the impugned order was passed. It has been stated in the petition that the copy of the order was served on the petitioners in the month of October, 1974. In any event, there is no prescribed period of limitation for presentation of a writ petition as already stated; at best the petition was presented in this court three and a half months after the passing of the order under challenge. In our opinion, the petition cannot be considered to be unduly delayed. It was next contended that the petition had not been filed by a proper person in the sense that Sri Deoki Nandan, Advocate, who had signed it was the standing counsel for the income-tax department and could not represent the petitioners who were merely officers of the department. The contention, in our view, is wholly misconceived. Sri Deoki Nandan in his capacity as the standing counsel of the department w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution was barred in view of the amendment introduced therein by the 42nd Constitution Amendment Act, 1976. We are unable to accept this contention. The department was heard by the Bench of the Tribunal at Delhi in the application made by opposite party No. 1 and in spite of opposition by it, it was allowed. The petitioners consequently could not conceivably expect to obtain any relief from the Tribunal at Delhi in proceedings under s. 35 of the Act. In fact during the pendency of the petition in this court, the petitioners did apply under s. 35 of the Act before the Delhi Bench of the Tribunal and by an order dated 25th September, 1978, the application was dismissed. The Tribunal's Bench at Delhi held as follows : " The question as to how to give effect to the order of the High Court in dismissing the writ petition is a debatable one. Even the department has applied for a writ petition to the High Court for quashing the order of the Tribunal dated 30-9-1974 and has moved the present application for rectification of the order of the Tribunal dated 30-9-1974. We are, therefore, of the view that even if there is any mistake in the order of the Tribunal dated 30-9-1974 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h December, 1973, was, inter alia, challenged on the ground that it was against the judgment of this court dated 8th August, 1973 (Gargi Din Jwala Prasad v. CIT [1974] 96 ITR 97); it is thus clear that the order of the Tribunal was challenged in the writ petition on the ground that it was not in accordance with the opinion of this court rendered in Income-tax Reference No. 174 of 1971 ([1974] 96 ITR 97). Though the writ petition was dismissed in limine and the Bench of this court has not given a detailed order by necessary implication it rejected the contention that the order of the Tribunal was not in conformity with the opinion of this court. This court consequently gave its seal of approval to the order dated 12th December, 1973. After the dismissal of the writ petition up holding the order of the Allahabad Bench of the Tribunal dated 12th December, 1973, it no longer remained open either to the Bench of the Tribunal at Allahabad or at Delhi to take, in purported exercise of the power under s. 35 of the Act, a contrary view and to hold that the order of the Tribunal dated 12th December, 1973, passed under s. 66(5) of the Act was not in conformity with the opinion of this court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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