TMI Blog1967 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... ndu family business under the name and style of " A. N. Guna Shenoi and Bros." in the former State of Cochin. At the relevant time, the Cochin Excess Profits Tax Act 1117 M.E. (II of 1117 M.E.) (1941 A.D.) and Cochin Income-tax Act, 1117 M. E. (VI of 1117 M.E.) were in force in the Cochin State. Cochin later became part of the State of Travancore-Cochin. On the commencement of the Constitution, the latter State became a Part B State in the Union of India. The Government of India on May 20, 1951, issued a notification giving certain terms to assessees if they disclosed their hidden income or income which had escaped taxation. We are not concerned with the exact concessions given but only with the question whether this notification was also concerned with the assessment under the Excess Profits Tax-Act. Our attention was invited by the plaintiffs to the opening sentence of the notification, which is as follows : " Detailed measures for launching a special drive for the clearance of arrears of income-tax have now been finalised by the Government of India." It was also pointed out that only Income-tax Officers were mentioned in various parts of the notification and no referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1121. The Income-tax Officer stated in this letter that total excess profits tax due was Rs. 1,29,724-3-0, and after adjusting payments already made to the extent of Rs. 71,851-9-0, Rs. 57,872-10-0, was payable as balance excess profits tax. A. N. Padmanabha Shenoi replied on August 19, 1953, requesting that they may be permitted to pay the said amount of Rs. 57,872-1 0-0 as tax for the income-tax year 1119, in three equal monthly instalments. However, on August 25, 1953, A. N. Padmanabha Shenoi took the position that no excess profits tax was due as the assessments in respect of excess profits tax for the years 1119, 1120 and 1121 became final by the orders of the Commissioner of Excess Profits Tax in Excess Profit Appeals Nos. 3 of 1120, 7 of 1121 and Excess Profits Tax Review No. 2 of 1124, respectively. He alleged that the said orders have not been and could not be reopened under the provisions of the Excess Profits Tax Act. He, further asserted that the Income-tax Officer had no jurisdiction to appropriate the sum of Rs. 71,851-9-0 which had been paid by him as advance tax towards income-tax and super-tax that may be legally due under the disclosure scheme towards the excess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the income-tax office under the direction of D. W. 1. All other items except income-tax have been scored off and the amounts are paid into the Treasury towards the head ' Income-tax ' ..... It was for the first tame on 11th August, 1953, that the adjustment of Rs. 71,851-9-0 was made by the Income-tax Officer The letter is not an assessment order. The Income-tax Officer does not say under what authority he has adjusted the said amount towards excess profits tax..... There is nothing in exhibit D-9 to show that either Padmanabha Shenoi or his son, the first plaintiff, agreed to pay the excess profits tax." The trial court further held : " If payments are already made towards income-tax, they could not be re-adjusted or re-opened, the demand notices for payment of income-tax cannot be considered to be valid, because no amount remains to be paid towards income-tax." The trial court also held that excess profits tax was not leviable from the plaintiffs on the relevant dates. The trial court further repelled the contention of the Union of India that the plaintiffs are estopped from denying their liability to pay excess profits tax. In the result, the trial court passed a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, (a) that the father of the plaintiffs, A. N. Padmanabha shenoi had not agreed to pay excess profits tax; (b) that, at any rate, he was estopped from saying that he had not agreed to pay excess profits tax ; and (c) that the suit was barred by the provisions of section 111 of the Cochin Income-tax Act of 1117 M. E., which, inter alia, provides that no suit shall be brought in any civil court to set aside or modify any assessment made under this Act. We will first deal with the points raised in Civil Appeal No. 101 of 1966, by the learned counsel for the defendant, seriatim. Whether the plaintiff's father had agreed to pay excess profits tax in addition to income-tax is a question of fact. Both the trial court and the High Court have found that there was no such agreement. No writing is produced in support of this contention. The notification of the Government of India, dated May 20, 1951, does not mention excess profits tax or Excess Profits Tax Officers. We have not been shown any material to enable us to set aside this concurrent finding. In the result, it must be held that, it is not proved that the plaintiff's father had agreed to pay excess profits tax. There is also n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed by the defendant. Civil Appeal No. 101 of 1966 is accordingly dismissed with costs. Coming to the plaintiffs' appeal, we are of the view that the High Court erred in holding that the demand notices P-23, P-24 and P-25 were valid to the extent of Rs. 21,884.81. This sum was arrived at by revising the assessment orders, not under any provision of the Income-tax Act, but by the counsel for the revenue. The assessment orders stand as they were before. We are unable to appreciate how the assessment orders can be revised except under the provisions of the Income-tax Act. Neither the counsel for the defendant nor the High Court has power to revise any assessment order. Indeed, section 111 of the Cochin Income-tax Act interdicts the High Court. It is true the High Court has not done it directly, but indirectly it has done so. Consequently, we set aside the finding of the High Court that the demand notices, P-23, P-24 and P-25, were valid to the extent of Rs. 21,884.81. In the result, Civil Appeal No. 100 of 1966 succeeds to the extent indicated above. The plaintiffs will have their costs in this court. There will be one hearing fee in both the appeals. Civil Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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