TMI Blog1986 (12) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment year 1978-79 amounted to Rs. 3,53,398 and that the ITO had not considered the applicability of section 41(1) of the Act in respect of the remission of this liability. So the Commissioner was of the opinion that the assessment order dated 7-9-1982 for the assessment year 1979-80 was erroneous and prejudicial to the interests of the revenue. He issued notice to the assessee under section 263 in these circumstances. Before the Commissioner the assessee submitted that the Government's order dated 29-3-1979 was published in the Gazette only in the month of April 1979 and the assessee came to know of this only in April 1979 and, hence, the amount could be considered only for the assessment year 1980-81. Disagreeing with the submissions made by the assessee the Commissioner held that the cessation of the liability took place and the benefit accrued to the assessee as soon as the Government of Kerala passed an order granting exemption and, therefore, the amount was rightly taxable for the assessment year 1979-80. So he directed the ITO to apply the provisions of section 41(1) in respect of the deduction allowed to the assessee as purchase tax for the assessment year 1978-79 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te issued by the Assistant Superintendent, Government Press, Trivandrum dated 27-11-1986. This notification was sent by the Secretary to the Government by his letter No. 2126/B1 of 1979-T.D. dated 10-4-1979 to the President, Sea Food Exporters' Association of India, Cochin as can be seen from page 3 of the paper book. The secretary of the said association, by his letter dated 17-4-1979 circulated the same to its members as can be seen from page 4 of the paper book. As the said notification dated 29-3-1979 was published as an Extraordinary Gazette in Vol. XXIV/225 dated 29-3-1979 and the same was published and made available to the public in the Gazette dated 3-4-1979 (as certified by the Assistant Superintendent, Government Press, Trivandrum), the notification became effective for the assessee from 3-4-1979 only which fell in the accounting year 1979-80 relevant to the assessment year 1980-81. After coming to know of the said notification from the secretary of the association after 17-4-1979 the assessee credited the said amount of Rs. 3,53,398 to his capital account in the accounting year relevant to the assessment year 1980-81. The assessee has got no objection for assessing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the following effect : Here in the present case the date of the notification, i.e., 29-3-1979 is relevant for the purpose of assessment. The date of publication of the notification in the Gazette is not material. The amount under consideration is assessable under section 41(1) for the assessment of 1979-80 assessment year only. Reliance is placed on the decisions in Liquidator, Mysore Agencies (P.) Ltd. v. CIT [1978] 114 ITR 853 (Kar.), CIT v. Kabbur Bros. [1981] 128 ITR 43 (Kar.) and CIT v. Manohar Bandhu [1984] 148 ITR 108 (Bom.). The decision in Asia Tobacco Co. Ltd's case is not applicable to the facts of the present case. The matter at issue was not the subject-matter of appeal before the Commissioner (Appeals) for the assessment year 1979-80. Hence, the theory of merger of the ITO's order with the order of the Commissioner (Appeals) and the alleged assumption of jurisdiction wrongly by the Commissioner does not arise. Reliance is placed on the decisions quoted in Chaturvedi and Pithisaria's Income-tax Law. Fifth edn., Vol. 5, page 4594. 5. We have considered the rival submissions. It is seen that the Government's order G.O.M.S 54 of 1979-T.D. to exempt the marine product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the public or putting it on sale to the public. Neither the date of the notification nor the date of printing, nor the date of the Gazette counts for ' notification ' within the meaning of the rule, but only the date when the public gets notified in the sense, the concerned Gazette is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printing the Official Gazette and stacking them without releasing to the public would not amount to notification at all." In the case on hand also the notification dated 29-3-1979 was published and made available to the public in the Gazette dated 3-4-1979 as per the certificate given by the Assistant Superintendent, Government Press, Trivandrum. Hence, the decision of the Madras High Court squarely applies to the facts of this case. Respectfully, following the said decision we hold that the notification dated 29-3-1979 is effective for the assessee as well as the Income-tax Department or for that matter the public in general from 3-4-1979 only. In fact in this case the Secretary to the Government of Kerala informed the President of the Sea Food Exporters' Association of I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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