9911796707
TMI Blog1973 (5) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... Life Insurance Corporation of India, Zenith Assurance Co. Ltd., and British India General Insurance Corporation. A list of shareholders of the respondent for the relevant year, that is to say, for the period from January 1, 1963, to December 31, 1963, had been annexed to the petition. A similar list was filed before the Income-tax Officer at or before the time of assessment of the tax for the assessment year 1964-65. In assessing the respondent, the Income-tax Officer computed the total income of the respondent at Rs. 19,78,729 and treated the respondent as a company in which the public were substantially interested within the meaning of section 2(18) of the Act and allowed rebate of tax under para. (d) of Part II of the First Schedule to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocessing of goods. In support of this he relied on the balance-sheet from which it appeared that at the relevant time the respondent was carrying on business as managing agents of different companies and also as exporters of goods. Mr. Sen contended that this was supported by the assessment order which showed that the respondent had obtained rebate as an exporter of goods. Sub-clause (2) of clause (iii) of section 109 of the Act contemplates a company whose business consists wholly in manufacturing or processing of goods. It was argued by Mr. Sen that for the reasons noted above the respondent was not at the relevant period of time a company engaged wholly in manufacturing or processing goods. The only question before us is whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to show cause why an order under section 23A of the Act should not be made and thereupon the assessee applied to this court for a writ directing the Income-tax Officer to recall the notice and to forbear from giving effect to the same on the ground that an order under section 23A of the Indian Income-tax Act, 1922, being an order of assessment was governed by the period of limitation of four years fixed by section 34(3) of the Indian Income-tax Act, 1922. It was held that as the Income-tax Officer had merely issued a notice to show cause why an assessment should not be made under section 23A of the 1922 Act, and the contention that an order under section 23A of the said Act would be barred by limitation under section 34(3) of the said Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that section if there is an error apparent from the record. If there is no such error, or if what appears from the records is not an error at all, undoubtedly the question of jurisdiction of the Income-tax Officer to issue a notice might be raised. But where there is an error apparent from the record the Income-tax Officer has jurisdiction under section 154 of the Act to issue a notice under that section. It cannot be over-looked that, at the stage when the notice is issued, no order is made against the assessee, who is merely called upon to show cause why the error should not be rectified. The assessee is at liberty to appear before the Income-tax Officer and satisfy him that there is in fact no such error. This is not a case of inherent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aryya on a Bench decision of this court in P. C. Ray and Co. (India) Private Ltd. v. A. C. Mukherjee, Income-tax Officer. In that case it was held that in order that an error of law might be corrected by certiorari, it had to be an error apparent on the face of the record and that the order alleged to be vitiated by the error must be a speaking order, that is to say, an order giving its reasons for the view taken therein and such reasons being manifestly wrong. Reliance was also placed by Mr. Bhattacharyya on another decision of this court in India Foils Ltd. v. Income-tax Officer. In that case the learned judge, following his earlier decision, held that the Income-tax Officer could not assume jurisdiction under section 154 of the Act to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the list of shareholding was not before the Income-tax Officer at the time when the assessment was made, but was furnished to him at a later point of time. We asked Mr. Bhattacharyya to produce the records of the respondent to satisfy us that the list of shareholding was furnished by the respondent to the Income-tax Officer at a point of time subsequent to the making of the original assessment order. No such record was produced before us. We must, therefore, hold that the materials on the record on which the Income-tax Officer relied, namely, the lists of shareholding, were before the Income-tax Officer at the time of making the assessment for the assessment year 1964-65. For the reasons mentioned above this appeal succeeds and is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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