TMI Blog1967 (2) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of those assessment orders and of the recovery proceedings taken consequent thereto. He proceeded in revision under section 33A(2) to the Commissioner of Income-tax against the assessment orders, and he has also challenged the orders of the Commissioner declining to interfere. Pandit Deo Sharma, elder brother of the petitioner, was a working partner in the firm Messrs. L. N. Gadodia Cawnpore Cotton Mills Agency, which had been appointed as the sole selling agent of the Cawnpore Cotton Mills, Kanpur. As a working partner he was entitled to a one-fourth share in the profits of the firm. Pandit Deo Sharma was also employed to manage a retail cloth shop of the Cawnpore Cotton Mills and was paid a one-fourth share in the net profits accrui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not liable to tax in the hands of the petitioner. The Income-tax Officer, however, treated the receipt as taxable and assessed the petitioner. It appears that the petitioner filed appeals against the assessment orders before the Appellate Assistant Commissioner. The appeals were dismissed. He then proceeded in appeal to the Tribunal, but while filing an appeal in respect of the assessment years 1944-45 and 1945-46, he did not file any appeal in respect of the assessment year 1946-47. When the two appeals were called on for hearing before the Tribunal, the petitioner applied for adjournment, but the Tribunal refused to adjourn the appeals and dismissed them. After the assessment had been made against the petitioner by the Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an order was made returning the reference unanswered to the Tribunal. Then, on January 20, 1963, within one year from the order of the court, the petitioner filed a fresh revision application before the Commissioner, purporting to be in pursuance of the observations of the Commissioner mentioned in his earlier order. Unfortunately for the petitioner the Commissioner now took a different view of the matter and dismissed the revision application by his order dated April 3, 1965, on the ground that, as a final order had been made under section 33A(2), he could not pass another order in revision on a point which had already been covered by the earlier order in revision. The petitioner contends that the Commissioner was bound to decide his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under section 23(1) to make an assessment on the basis of the return if he is satisfied, without requiring the presence of the assessee or the production of evidence in support of the return, that the return is correct and complete. But it may be that the assessee may have committed a mistake in treating a certain receipt as taxable. The mere circumstance that he has shown that receipt as income in his return does not make him liable to tax thereon. An assessee is liable to tax only upon such receipt as can be included in his total income and is assessable under the Income-tax Act. The law empowers the Income-tax Officer to assess the income of an assessee and determine the tax payable thereon. In doing so, he may proceed on the basis tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and reference is made to clause (c) of the proviso to section 33A(2). Now clause (c) of the proviso does say that the Commissioner shall not revise an order under section 33A(2) if the order has been made the subject of an appeal to the Appellate Tribunal, and it is, therefore, apparent that the Commissioner had no power to interfere with the assessments for the assessment years 1944-45 and 1945-46. In respect of the assessment year 1946-47, however, no appeal having been filed to the Tribunal, it was open to the Commissioner to interfere in the exercise of his revisional jurisdiction. Consequently, his order dated October 11, 1957, on the revision application for the assessment year 1946-47 is liable to be quashed. The next contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of November 14, 1942, cannot, in my opinion, be construed as a deed of sub-partnership. Upon its terms it is merely an agreement for work to be done by the petitioner and remuneration therefor by Pandit Deo Sharma. Upon all these considerations, in my judgment Writ Petitions Nos. 1896 and 1976 of 1965 which relate to the assessment years 1944-45 and 1945-46 must fail, while Writ Petition No. 1975 of 1965 relating to the assessment year 1946-47 is entitled to succeed. Writ Petition No. 1975 of 1965 is allowed. The order dated October 11, 1957, made by the Commissioner of Income-tax is quashed. The Commissioner of Income-tax is directed to consider and determine afresh the earlier revision application filed by the petitioner for the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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