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TMI Blog1958 (11) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. 3. On 11th February, 1952, the assessee, who is singer by profession, submitted her return of income in respect of the assessment years 1948-49, 1949-50 and 1950-51. That was her first return and was made after the close of the assessment year 1950-51. She submitted her return for the assessment year 1951-52 on 9th October, 1952. That also was after the close of the assessment year 1951-52. The assessments for the years 1948-49 to 1950-51 were completed on 5th March, 1952, and the assessment for the year 1951-52 was completed on 11th September, 1953. The second respondent is the Income-tax Officer and the third respondent is the Commissioner of Income-tax, Bombay. On 27th February, 1956, the second respondent issued a notice on the assessee alleging in it that the petitioner had not submitted an estimate of her total income for the years which we have already mentioned and had also failed to pay advance tax. He called upon the petitioner by that notice to show cause why an order under section 35 should not be passed on her levying penal interest in respect of these years. Ultimately, the Income-tax Officer passed three orders, two of them on 3rd March, 1956, and one on 20th Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax payable by him calculated in the manner laid down in sub-section (1) on that part of his income for such period; and shall pay such amount as accords with his estimate in equal installments on such of the dates specified in sub-section (1)(a) as have not expired or in one sum if only the last of such dates has not expired : Provided that the assessee may send a revised estimate of the tax payable by him before any one of the dates specified in sub-section (1)(a) and adjust any excess or deficiency in respect of any installment already paid in a subsequent installment or in subsequent instalments. (3) Any person who has not hitherto been assessed shall, before the 15th day of March in each financial year, if his total income of the period which would be the previous year for an assessment for the financial year next following is likely to exceed the maximum amount not chargeable to tax in his case by two thousand five hundred rupees, send to the Income-tax Officer an estimate of the tax payable by him on that part of his income to which the provisions of section 18 do not apply of the said previous year calculated in the manner laid down in sub-section (1) and shall pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee... (8) Where, on making the regular assessment, the Income-tax Officer finds that no payment of tax has been made in accordance with the foregoing provisions of this section, interest calculated in the manner laid down in sub-section (6) shall be added to the tax as determined on the basis of the regular assessment." 7. In the case of Shantilal Rawji we held that where it was clear that under section 18A(6) it was incumbent upon the Income-tax Officer to charge interest, then his failure to do so would be an error apparent on the face of the record capable of being rectified under section 35. We also took the view that the fifth proviso to section 18A(6) which was inserted in the Act in May, 1953, with retrospective effect from 1st April, 1952, (and which must, therefore, be deemed to have been part of the Act on the date of the assessment order) vested a discretion in the Income-tax Officer to reduce or waive the interest payable by the assessee, and finally we decided in that case that as there was nothing on the record to show that the failure to charge interest was due to the failure to discharge his obligation on the part of the Income-tax Officer under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule which may be adhered to in every case, because the very conception of discretion rules out the existence of any rigid formula. In the present case, we do not think we would be justified in rejecting the petition on the ground that there has been inordinate delay in the filing of the petition. 9. The next contention of the nature of a preliminary objection urged before us by the counsel for the Revenue is that the relief sought by the petitioner is in respect of three orders and notices of the Income-tax Officer who is respondent No. 2, as well as the order passed in revision by the third respondent, who is the Commissioner of Income-tax and it is said that there is no ground mentioned in the petition for any writ being issued in respect of the order passed by the third respondent in revision. We agree that there is no ground for any writ being issued in respect of the order passed in revision by the third respondent. Even if the petitioner in her petition had asked that the order passed by the third respondent may be quashed, it was not necessary for her to seek that relief at our hands. It was competent to her and open to her to come to this court only for the purpose of cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dismissal of the petition is not to confirm the order of the trial court, because no confirmation is necessary from the revisional court. When the revisional court dismisses the petition, the true effect in law is that it refuses to exercise the revisional jurisdiction conferred upon it. In fact case, in the course of my judgment I had observed : "There are to my mind clear and tenable reasons for the distinction I am asked to draw. First of all I would like to accentuate only one point of differentiation between an appeal and a revisional application, which to my mind is sufficient to bring out this distinction. An appeal is a rehearing of the suit and, therefore, it would be sound logic to say that when there is any judicial determination of an appeal, the decree under appeal becomes merged in the decree passed on appeal, even though the decree under appeal is after judicial determination left untouched and unvaried. Such confirmation, it has been ruled, has the same effect as an order of reversal would have had in so far as it leaves the decree of the appellate court as the only decree in existence for the purpose of execution and the decree of the lower court becomes incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (6) are plain and simple when they say "where in any year an assessee has paid tax under sub-section (2) or sub-section (3) on the basis of his own estimate". Therefore, the penal interest that can be charged to any assessee under sub-section (6) can only be in respect of an assessee who has paid tax under sub-section (2) or sub-section (3) on the basis of his own estimate, and the assessee in the case before us could not have been charged with any penal interest under sub-section (6). If she could not have been charged any penal interest under sub-section (6), says Mr. Joshi, there could be no question of invoking the fifth proviso to that sub-section. In our judgment, there is considerable force in this argument of learned counsel for the Revenue. 14. It is next urged by Mr. Joshi that this case clearly falls within the language of sub-section (8) because on making the regular assessment of the assessee, the Income-tax Officer found that she had not made any payment of tax in accordance with any of the provisions of the section and the language of sub-section (8) is mandatory and there is no proviso tacked on to sub-section (8) of the nature of the proviso engrafted on sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncorporated in sub-section (6) of section 18A. The argument had of necessity to come to the length of saying that every proviso under sub-section (6) must be incorporated under sub-section (8). An examination of those provisos shows that there is no reason whatever why all those provisos should be incorporated under sub-section (8). It will be seen that in some of the provisions laid down in sub-section (6) what is stated is nothing more than a mode or method of calculating interest and the Legislature has deliberately used certain words in sub-section (8) referable to the meaning of calculating interest to be added to the tax as determined on the basis of the regular assessment with which sub-section (8) deals. If the intention of the Legislature was to incorporate all the provisions in those provisos under sub-section (8), it was not necessary for it to refer in express and explicit terms to the meaning of calculating interest laid down in sub-section (6) in enacting sub-section (8). It is clear, therefore, that in sub-section (8) the legislature thought it necessary only to bring that part of sub-section (6) within the ambit of sub-section (8) which it thought was necessary to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income on which penal interest is charged as also the period for which the interest is charged. But all that would be within the matrix of the fifth proviso to sub-section (6) and that sub-section alone. There is no warrant for transmitting that proviso to sub-section (8). It has also been urged that no proper calculation can be made if there is no discretion to waive or reduce the amount. We have already mentioned that the language of sub-section (8) is mandatory. It says that interest calculated in the prescribed manner shall be added to the tax as determined on the basis of the regular assessment, whereas the proviso leaves a discretion in the Income-tax Officer. It is not possible for us to acquiesce in the suggestion that the authority vested in the Income-tax Officer to add interest to the amount of tax determined on the basis of the regular assessment must of necessity be coupled with a discretion in the matter when the language of the provision is mandatory and leaves little scope for any such suggestion. It has also been urged that calculations can always be variable because that would depend on the discretion of the Income-tax Officer. That certainly is not the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as applicable to all the provisions of section 18A. It must be read in the context of the language of sub-section (6) and particularly the fifth proviso to that sub-section. It is true that the rules are statutory rules and made by the Central Board of Revenue. But we are not prepared to subscribe to the principle that rules can in any manner control or direct the interpretation to be placed on the plain language of sub-section (8). In a case of doubt, a rule of the nature before us may throw some light on the trend of the section or the intention of the law-maker. 22. In the matter of interpretation, the court derives assistance from various factors. But the most important of these factors is intrinsic evidence. The intrinsic evidence in the case before us is the clear and unambiguous language of sub-section (8) and (6). In a case of doubt or difficulty, the history of legislation may at times render assistance to the court in ascertaining the intention of the law-maker. In the case before us, it is not necessary for us to examine the history of legislation in any detail, but if it were necessary to do so the history of legislation would strongly support the contention pressed be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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