TMI Blog1970 (11) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of this court. The facts as given in the statement of the case are as follows : The assessee, Malchand Surana was served with a notice under section 34 of the Act for reassessment of his income for the assessment year 1945-46 in February, 1949. As no return was filed in response to the said notice a best judgment assessment was made under section 23(4) on the 19th April, 1949, on a total income of Rs. 41,500. The assessee made an application under section 27 of the Act asking the Income-tax Officer to cancel the assessment and to make a fresh assessment as the aforesaid notice under section 34 was not served on him and he had no reasonable opportunity to comply therewith. His case was that the registered letter containing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66(2), namely, "Whether, on the facts and circumstances of the case, the Tribunal was justified in holding that service of the notice under section 34 of the Indian Income-tax Act by registered post, which had been received by Chaganlal, a brother of the assessee at the place of business of the assessee, was not sufficient service within the meaning of section-63 of the Indian Income-tax Act ?" This court gave the following answer to the said question : " No, in the' absence of any consideration of the presumption under section 27 of the General Clauses Act and any finding that the said presumption had been rebutted." In conformity with the answer given by this court the Tribunal reconsidered its decision in I.T.A. No. 7547 of 1950-51 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontravention of section 33(6) of the Act ?" Before considering the contentions urged by the learned counsel it would be useful to set out the relevant provisions of the Act. Section 27 entitles an assessee to apply to the Income-tax Officer to cancel an assessment already made and make a fresh assessment if he can satisfy him that he was prevented by sufficient cause from either filing the return or from complying with the notices under sections 22 and 23. An appeal from an order refusing an application under section 27 to the Appellate Assistant Commissioner is provided in section 30. Section 33 deals with appeals to the Appellate Tribunal. Sub-section (1) of that section entitles any assessee objecting to any order passed by the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits was ultra vires of its powers and was wholly illegal. Mr. B. L. Pal, learned counsel for the Commissioner, submitted that the Tribunal in fact never decided. I. T. A. No. 7546 of 1950-51. Its decision was on the assessee's appeal against the Income-tax Officer's order refusing to cancel the assessment under section 27 and its order allowing the assessee's appeal against the assessment was merely consequential on its decision in the appeal against the order under section 27. This is quite clear from the Tribunal's order of the 9th April, 1952. As a consequence of the High Court's answer to the first reference the Tribunal had to reject the assessee's appeal against the order under-section 27 and confirm the Income-tax Officer's order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l constables, and gave them jurisdiction to inquire into an offence, impliedly empowered them to apprehend the persons who unlawfully failed to attend before them for those purposes. Otherwise, the jurisdiction could not be effectually exercised." These authorities were considered by the Supreme Court in Income-tax Officer Cannanore v. M. K. Mohammed Kunhi. The question in that case was whether the Income-tax Appellate Tribunal had inherent jurisdiction to grant stay of realisation or tax pending appeals by the assessee. After considering the aforesaid authorities the court observed, at page 819, that the powers which have been conferred by section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal on merits would be rendered nugatory. It must, therefore, he held that by necessary implication section 33 authorises the Tribunal to pass such orders as to make its decision on appeals pending before it effective. As its former order was merely consequential there was no decision in that appeal on merits and on the appellate order under section 27 being reversed the order in appeal against the order for assessment must also be revised. We are of the opinion that the question as framed does not bring out correctly the issue between the parties because it assumes that there has been a contravention of section 33(6) of the Act. We would reframe the question in the following manner : " Whether, on the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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