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TMI Blog1978 (2) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 13 of the Companies Profits (Surtax) Act, 1964, passed in September, 1968. The order under s. 13 of the Surtax Act passed by the ITO gave relief to the assessee under the Surtax Act by allowing the additional tax liability arising from the order under s. 147 to be deducted from the chargeable profits. After the passing of the AAC's order in November, 1970, the order under s. 13 passed in September, 1968, by the ITO under the Surtax Act needed revision. The order passed in September, 1968, had given relief to the assessee under the Surtax Act as stated above and the same was required to be withdrawn. The ITO, therefore, passed the order under s. 13 of the Surtax Act in April, 1971, modifying or amending the order under s. 13 passed in September, 1968, and giving effect to the AAC's order passed in November, 1970, under the Income-tax Act. An appeal was preferred by the assessee to the AAC. It was contended that the order under s. 13 was bad in law because there was no mistake apparent from the record. The next contention was that the order under s. 13 was barred by limitation. Both the objections were overruled and the appeal was dismissed. Being aggrieved by the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 47 to be deducted from the chargeable profits. In this connection, it would be better to go through the relevant sections, viz., 13 and 14 of the Surtax Act, which are as follows : " 13. (1) With a view to rectifying any mistake apparent from the record, the Commissioner, the ITO, the AAC and the Appellate Tribunal may, of his, or its own motion or on an application by the assessee in this behalf, amend any order passed by him or it in any proceeding under this Act, within four years of the date on which such order was passed. (2) An amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the assessee shall not be made under this section unless the authority concerned has given notice to the assessee of its intention so to do and has allowed the assessee a reasonable opportunity of being heard. (3) Where an amendment is made under this section, the order shall be passed in writing by the authority concerned. (4) Subject to the other provisions of this Act, where any such amendment has the effect of reducing the assessment, the ITO shall make any refund which may be due to such assessee. (5) Where any suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake under s. 13 is said to have been rectified. According to him ss. 154 and 155 of the Income-tax Act read with s. 13 of the Surtax Act enable the ITO to pass the order rectifying the mistake allowing the additional tax liability. It transpired that the ITO gave relief to the assessee in September, 1968, on his passing the order under s. 147 of the Income-tax Act. But, in appeal, the order was cancelled, and as a result the relief given under the Surtax Act by the ITO in September, 1968, had to be withdrawn. In doing so, the ITO had taken into account the order passed by him giving effect to the AAC's action in March, 1971, and withdrew the relief given in September, 1968. According to the assessing authorities the order of the Assistant Commissioner in 1970 constituted information " obtained and collected for the purpose of that Act " within the meaning of s. 19. Having taken this or treated that as an information available for the purpose of the Surtax Act the officer proceeded under s. 13 to rectify the order passed by him in September, 1968. In this connection, it may be taken into consideration, the argument on behalf of the assessee that there was absolutely no mistake i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies (Profits) Surtax Act, 1964, giving relief to the assessee in consequence of the order passed under s. 147 of the Income-tax Act, 1961. Thereafter, however, on 2nd of November, 1970, the AAC cancelled the subsequent income-tax assessment made under s. 147 of the Income-tax Act, 1961, and the ITO in March, 1971, gave effect to the order of the AAC in cancelling the subsequent assessment and thereby restoring the original assessment under the Income-tax Act, 1961. Thereafter, on the 21st of April, 1971, the impugned order was passed under s. 13 modifying the order dated 16th of September, 1968. The present order had to be passed because the subsequent order under the Income-tax Act, 1961, imposing additional tax liability had been set aside and, therefore, the " chargeable profits " under the Companies (Profits) Surtax Act, 1964, became larger. It is the jurisdiction to pass this order that is under challenge in this reference under s. 256(1) of the Income-tax Act, 1961, read with s. 18 of the Companies (Profits) Surtax Act, 1964. In my opinion, s. 13 of the Companies (Profits) Surtax Act, 1964, gives jurisdiction and authority to the ITO to pass the impugned order. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts) Surtax Act, 1964, is directed cannot be computed without the records of the income-tax assessment and neither the income assessed and determined nor the deductions contemplated by the First Schedule to the Companies (Profits) Surtax Act, 1964, be given effect to. In the premises, I am of the opinion that " records " in this case under s. 13 of the Act would include record of the income-tax assessment. After all, the original assessment under the Companies (Profits) Surtax Act, 1964, had to be made on the basis of the original income-tax assessment. Therefore, if such records were available for making the assessment under the Act, then in my opinion the manner in which the super profit tax or surtax is to be levied makes the income-tax assessment records part of the record of the Companies (Profits) Surtax Act, 1964, and, therefore, the ITO had the jurisdiction to look into those records. The analogy of the records of the partner and of the firm is not quite apposite. Another argument was sought to be based on the ground that as a result of the amendment introduced in s. 14 of the Companies (Profits) Surtax Act, 1964, by virtue of s. 73 of the Taxation Laws (Amendment) Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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