TMI Blog1976 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... ,703. After deducting the profits of the standard year, the Excess Profits Tax Officer assessed the tax on the remaining amounts of profits. The excess profits tax thus assessed for the accounting years was to the tune of Rs. 1,06,181.5 and Rs. 48,978, respectively. In his orders, the assessing officer said that "for reasons detailed in the earlier assessment orders no adjustments are made for capital variations in the standard period and the chargeable accounting period". These reasons as given in the earlier assessment order, dated October 30, 1947, pertaining to the chargeable accounting period ending March 31, 1944, were : "As complete and regular accounts are not maintained by the assessee, it is not possible to make any adjustment for variations in average capital which cannot be accurately ascertained". Against the orders of assessment, the assessee preferred two appeals on September 24, 1949, to the Appellate Assistant Commissioner. By two separate applications dated October 24, 1949, the assessee took an additional ground of appeal--which obviously he had not taken in the original memorandum of appeal--that the Excess Profits Tax Officer had erred in not allowing adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating to adjustment of standard profits according to variation in capital during the relevant period. On March 11, 1954, the assessee made a representation to the Central Board of Revenue praying for reopening of the assessments. In this representation also, he did not take up ground No. 1. Subsequently, however, on May 24, 1954, he wrote a letter to the Income-tax Officer saying that he was sorry to omit "one important point", i.e., ground No. 1 from his representation to the Board, and that the Income-tax Officer should to supplement the same while making (his) report to the higher authorities". His representation dated March 11, 1954, and the petition, dated May 24, 1954, both were rejected and the Commissioner communicated those rejections to the assessee by a letter, dated May 25, 1955, saying that he did not see any justification for reopening the assessments which had become final and closed. Thereafter, on April 2, 1956, the assessee made a second application to the Tribunal (which in substance was one for review of its orders, dated February 24. 1951), contending that ground No. 1 raised in his two appeals, relating to the standard profits of the two chargeable accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 23, 1957, requesting it to refer the question of adjustment of standard profits on account of increase and decrease in the capital in the relevant periods to the High Court, in addition to the questions of law directed by the High Court to be referred to it. This application was rejected for the reason that the question had not been raised in the reference application, nor did it arise out of the appellate orders of the Tribunal. On July 24, 1957, the Tribunal stated the case and made a reference on the other question to the High Court in compliance with that court's order, dated April 12, 1956. On November 4, 1968, the assessee filed a writ petition in the High Court praying for a writ of mandamus requiring the Tribunal to consider his ground No. 1 mentioned in the Excess Profits Tax Appeals Nos. 651 and 660 of 1949 and 1950 and his subsequent application dated April 2, 1956. The writ petition was heard by a learned single judge of the High Court who held that while disposing of the appeal, it was the duty of the Tribunal to record a finding on ground No. 1 which had been specifically raised in the memoranda of appeals before it, that the Tribunal, therefore, could a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal who had originally decided the assesee's appeals was there to hear the application ; that even in this inordinately delayed application, review and rectification was not asked for in a straightforward manner but it was disguised as an application for decision of the appeals which on account of non-decision of ground No. 1 were alleged to be still pending ; that the writ petition was filed after an abnormal delay of ten years ; that a perusal of the assessment orders made by the Excess Profits Tax Officer and the Appellate Assistant Commissioner, and even the memoranda of appeals filed before the Tribunal shows that at no stage the assessee furnished complete accounts or even a statement showing variations in the capital during the relevant periods. It is emphasised that all that the assessee said in the memoranda of appeals was that he was "prepared" to furnish a statement of such computation and accounts. It is further pointed out that no certificate of Shri Surinderjit Singh, advocate, who is supposed to have argued the appeals before the Tribunal, was filed. It is maintained that the only reasonable inference from these circumstances was that ground No. 1 was not pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... displace the irresistible inference arising from the surrounding circumstances and the conduct of the assessee, namely, that his counsel had not argued on ground No. 1 at all and had thus given it up. In the light of what has been observed above, we are of opinion that the High Court could not justifiably interfere in the exercise of its extraordinary jurisdiction under article 226 of the Constitution with the appellate orders of the Tribunal. In any case, the question as to whether the omission to record a finding on ground No. 1 by the Tribunal was due to the failure of the appellant to urge that ground or due to a lapse on the part of the Tribunal, which deserved rectification, was a matter entirely for the authorities under those taxation statutes. It will be well to recall once more what this court, speaking through J. C. Shah J. (as he then was), had stressed in Shivram Poddar v. Income-tax Offirer : "Resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognised by the Constitution in matters relating to assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise, or whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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