TMI Blog1962 (11) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... and R. N. sachthey. For the Respondent: R. J. Kolah and J. B. dadachanji, O. C. Mathur and Ravinder Narain of J. B. Dadachanji and Co., JUDGMENT SARKAR J. - This appeal is entirely without substance. It arises out of an application under article 226 of the Constitution made by the respondent-assessee for a writ quashing an order of assessment made under section 34 of the Income-tax Act, 1922. The respondent made advance payment of tax under section 18A(1) of the Income-tax Act for the assessment year 1952-53. On August 30, 1952, regular assessment for this year was made and a part of the tax paid in advance was thereupon found refundable to the respondent. Under the provisions of sub-section (5) of section 18A, as it then sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent under article 226 of the Constitution this order was set aside by the High Court of Bombay. Hence this appeal. Section 34 of the Act under which the impugned order was made so far as material for our purposes is in these terms : "34. (1) If -(b) the Income-tax Officer has reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under assessed, or assessed at too low a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been computed he may proceed to assess or reassess such income, profits or gains or re-compute the loss or depreciation allowance." The assessment, reassessment or comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly a case of overassessment though only provisional and not for under-assessment at all. The payment of interest was in so sense a relief granted in computing income; it was paid at the rate calculated according to the law then in force. No doubt in view of the subsequent amendment of the law and in view of this amended provision being given retrospective operation covering the date when the original assessment had been made, if the interest has to be computed according to the amendment law then a smaller sum might have been payable as interest. But when it was computed, the new law was not in fact there and, therefore, the computation had been according to the law then in force. That computation cannot be reopened under section 34 because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch we are concerned is a part of the tax, and therefore when more interest was allowed to an assessee than was due he was given excessive relief. This is obviously fallacious. These sub-section deal with interest payable by an assessee and we are concerned in this case with interest payable by the Government. Lastly, our attention was drawn to civil Appeals Nos. 37-40 of 1962 (M. Chockalingam v. Commissioner of Income-tax [1963] 48 I. T. R. (S. C.). 34 , [1963] SUPP. 1 S.C.R. 599) in which referring to the proviso to section 35 of the Income-tax Act this court observed: "The learned counsel for the department raised the forlorn argument that the addition of penal interest is not enhancement of assessment as stated in the proviso. We do ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
