TMI Blog1962 (3) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of which the Income-tax Officer made an assessment fixing the petitioner's total income at ₹ 55,403. On the petitioner's appeal this order was quashed by the Appellate Assistant Commissioner who directed that the Income-tax Officer should make a fresh assessment after giving the petitioner a reasonable opportunity to meet the department's case and explain his own case. In the meantime the tax found due under the assessment had been paid. The petitioner's case is that the fresh assessment was completed in February, 1954, when his profit was found to be ₹ 5,000 which meant that he became entitled to a total refund of about ₹ 20,000 on the sum which he had paid regarding the disputed assessment, comprising about ₹ 4,000 on account of excess profits tax and ₹ 16,000 as ordinary income-tax. After the assessment the petitioner moved the department to make the refund and on the 16th of November, 1954, he was actually given a refund of ₹ 4,049 by the Excess Profits Tax Officer. However, after correspondence between the petitioner and the department, instead of the refund of ₹ 16,000 as income-tax being made, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her delay under intimation to this office. The draft assessment order may, however, be got approved by the Inspecting Assistant Commissioner before finalising the said assessment. This was followed by a further letter dated the 26th of May, 1954, from the Inspecting Assistant Commissioner to the Income-tax Officer which reads: The draft assessment order in the case noted above has not so far been received in this office for my approval. The Income-tax Officer is therefore requested to submit the same without further delay. It was then that the assessment order was sent to the Inspecting Assistant Commissioner by the Income-tax Officer with a covering letter also dated the 26th of May, 1954, which reads: I have the honour to submit herewith the draft assessment order for 1945-46 in the case of Sardar Sewa Singh Gill for favour of approval. The order is to be approved by you as directed to the undersigned in C.I.T.'s No. K-185(45)52-53-2070 dated the 8th of May, 1954. The accompanying assessment order is neither signed not dated by the Income-tax Officer, though nowhere in the order itself is it described as merely a draft order. The question which ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of khajan land and, following this direction, he concluded his final order with the words Government in their memorandum No. 10587 of the 17th of October, 1908, have directed me to award compensation at the rate of ₹ 4 per acre for khajan, and I therefore make my award accordingly. A reference to the District Judge followed as a result of which the rate of compensation was raised to ₹ 14 per acre and in the appeal to the High Court the validity of the proceedings which led to the reduction of the Collector's estimate from ₹ 50 to ₹ 4 per acre was challenged. The matter is dealt with in the judgment of Batchelor J. at page 602 as follows: It has been contended by Mr. Raikes for the appellant, that although the appointment of a Collector under the Act rests wholly with the local Government, yet when they have once appointed that officer, he must be allowed to prosecute his enquiries under the Act up to their end, without interference from the Government in their executive capacity. It appears to me that that argument must prevail. It is, I think, clear on the facts which I have set out that if the view presented to us by Government is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , since if the order fell short of being an award, it fell short only by reason of those very executive orders of the Government whose validity is now in dispute. And if I am right in thinking that those orders are of no effect, then it follows that the award is that which Mr. Waterfield would have made had he not been restrained by these orders. This principle was followed by me in Edward Keventer Successors Ltd. v. The State of Delhi C.W. No. 6 of 1953 decided on the 20th of October, 1953, in which the award of a Land Acquisition Collector which had actually been approved by the Collector of Delhi and filed in the office had been withdrawn at the instance of the Chief Commissioner and an award by which the compensation was very heavily reduced was substituted. I held in that case that the award became the award of the Collector as soon as it was filed in the office and that although the approval of the Collector had in fact been obtained, this was unnecessary and unwarranted. Apart from this there is no dearth of authorities to the effect that where under a statute it is the duty of a particular officer to decide a certain matter, the matter must be decided according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the process of submitting his order for the approval of his superior or, as the case may be, for revision carried out under his directions, was something which simply could not be done, and in my opinion the principle laid down in Motivala's case [1912] I.L.R. 36 Bom. 509 applies to the present case. One argument advanced on behalf of the respondents was that under the provisions of section 29 of the Act any assessment order made by an Income-tax Officer must be followed by the service on the assessee of a notice of demand, and it is contended that the assessment order in this case could not be regarded as an assessment because it was not followed by such a notice of demand. Actually in the present case the notice which would follow from the terms of the assessment would be one intimating a refund, but whether the notice was to be for a demand or a refund is immaterial. The same argument applies as in Motivala's case [1912] I.L.R. 36 Bom. 509, that the only thing which prevented the Income-tax Officer from giving effect to the terms of his assessment order without delay was the order for the obtaining of the prior approval of the Inspecting Assistant Commissioner, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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