TMI Blog1994 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ection. Section 10 of the Act, inter alia, provides that for computing the total income of a previous year of any person, the remuneration due to or received, chargeable under the head "Salaries" for services rendered as a technician in the employment of the corporation shall not be included provided the remuneration in pursuance of the contract of service in the case of a technician who has special knowledge and experience in industrial or business management techniques, is received by him during the period of six months commencing from the date of his arrival in India. In the case of any other technician, such remuneration is received during the 36 months commencing from the date of arrival in India. The expression "technician" is defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be adopted in accordance with section 147(b) of the Act. Respondent No. 2 claimed in the notices that there was reason to believe that Reister's income chargeable to tax for the assessment years 1973-74 and 1974-75 had escaped assessment within the meaning of section 147 of the Act. Pursuant to the notices, the petitioners filed returns, inter alia, protesting that respondent No. 2 had no jurisdiction to reopen the completed assessment and in any event the petitioners were not agents, of Reister. The petitioners complained that respondent No. 2 issued notices only on the basis of the audit objection and that fact is not sufficient to exercise jurisdiction. The contention raised by the petitioners was not accepted and the draft assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. The order passed by the Commissioner of Income-tax is under challenge in this petition filed under article 226 of the Constitution. Shri Dastoor, learned counsel appearing on behalf of the petitioners, submitted that respondent No. 1 was in error in not granting relief in exercise of the powers under section 264 of the Income-tax Act. Learned counsel urged that it is now well-settled by the decision of the Supreme Court in Indian and Eastern newspaper Society v. CIT [1979] 119 ITR 996 that the Income-tax Officer has no jurisdiction to reopen the assessment proceedings under section 147 of the Act by acting in pursuance of an audit objection. Learned counsel also submitted that the claim of the respondents that Reister was not a te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having specialised knowledge and experience in manufacturing operations and it is not possible to accept the claim that Reister who was a chef had special knowledge of manufacturing operations. The submission overlooks that the agreement with the Reister was approved by the Government of India under section 10 of the Act and as long as that order was not revoked, it, is not open to claim that Reister was not a technician within the meaning of section 10 of the Act. The impugned order sets out that as the Income-tax Officer had doubts about whether the term "technician" is applicable to the Reister, reference was made to the Central Board of Direct Taxes who in their turn referred the issue for opinion to the Ministry of Law, Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifications or circulars. Law is what is declared by the Supreme Court and the High Court, to wit, it is for the Supreme Court and the High Court to declare what a particular provision of the statute says, and not for the executive. In our judgment, the Commissioner of Income-tax had failed to exercise jurisdiction by placing blind reliance upon the opinion expressed by the Ministry of Law. In our judgment, the opinion was not correct because it was not permissible to reopen the completed assessment in pursuance of an audit objection and, consequently, the issue whether Reister was a technician or not could not have been examined. In these circumstances, the order passed by the Commissioner of Income-tax, on December 31, 1985, is required ..... X X X X Extracts X X X X X X X X Extracts X X X X
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