9911796707
TMI Blog1967 (8) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... hi ; the work for constrution of the said quarters was stated on November 4, 1943, and was completed some time in May, 1944 ; during the time when the work was in progress, the petitioner received part of the payments in the financial year 1943-44, relevant to the assessment year 1944-45, and the remaining in the financial year 1944-45, relevant to the assessment year 1945-46 ; on January 25, 1945, the Income-tax Officer, Contractor Circle, New Delhi, made an assessment of the petitioner for the assessment year 1944-45, but as some of the income was relevant to construction work which was not completed, the said assessment was made on tentative basis subject to adjustment in the year when the construction was completed ; in pursuance of the aforesaid order a sum of Rs. 20,348-5-0 was paid as tax in March, 1945, by the petitioner ; against this order, the petitioner preferred appeals before the Appellate Assistant Commissioner and the Income-tax Tribunal, but the same were dismissed. The only point raised by the petitioner in these appeals was that the rate of 18% applied by the Income-tax Officer was excessive and according to the petitioner's estimate, the rate of profit should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in that case decided that the assessment order of February, 1951 for the assessee at year 1945-46 was the final assessment order and the issue of fresh notices under section 22(4) of the Act to the petitioner was illegal. It may be stated that it is this judgment of the High Court which provided the basis for the petitioner to file the present writ petition. Before I consider the contention of the petitioner in this writ petition it is desirable to mention certain facts as borne out by the records. As I pointed out already, for the assessment year 1941-45, the Income-tax Officer passed an order of assessment purporting to be under section 23(2) of the Indian Income-tax Act, 1922, on January 25, 1945. The relevant portion of the assessment order is as follows : " I have discussed the case with the assessee under section 23(2). He held contracts for quarters on Lytton Road and the works were still in progress on March 31, 1944, and were completed some time in June or July, 1944, but certain payments have still to be received. In the previous year total receipts were Rs. 1,65,638. Material such as bricks, cement and timber etc., is supplied by Government whose cost has been deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deductions made for the supply of material to the contractor. There is no dispute as regards the application of the proviso to section 13 as the assessee himself estimated his profit at 10%. The only ground urged is that the estimate made by the Income-tax Officer is excessive. We agree with the Income-tax Officer that the total contract work done by the assessee for which he received the payments was of the value of Rs. 2,45,638 and not Rs. 1,65,638. No case has been made out by the representative of the assessee that the estimate made by the Income-tax Officer was excessive or arbitrary. We are satisfied that considering the market conditions prevailing at the material time the estimate made is fair and reasonable. The appeal is dismissed. " From this it will be seen that the rate of profits as well as the total receipts on which the rate was applied for arriving at the profits were the subject-matter of appeals before the Appellate Assistant Commissioner as well as the Tribunal. What happened with regard to the assessment year 1945-46 is fully set out in the judgment of a Bench of the Punjab High Court in S. Sewa Singh Gill v. Commissioner of Income-tax, already referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profits relevant for the year 1944-45 as Rs. 1,818, it was the duty of the Income-tax Officer to proceed under section 35 of the Act and to revise the order already passed by him on January 25, 1945. In reply to this contention, Shri D. K. Kapur, appearing for the respondent, submitted that the assessment order dated January 25, 1945, has been made the subject matter of appeals before the Appellate Assistant Commissioner as well as the Tribunal and the petitioner cannot ask the Income-tax Officer to revise the order passed by him on January 25,1945, in view of the express provisions contained in section 35(1) and (2) of the Indian Income tax Act, 1922. Section 35(1) provides that the Commissioner or the Appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or, in the case of the Commissioner, in revision, under section 33A, and the Income-tax Officer may, at any time, within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the record. Sub-section (2) states that the provisions of sub-section (1) will also apply in like manner to the rect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c officer, still it is open to the court to issue a writ of mandamus to the said public officer asking him to perform the duty, be relied upon a passage in Halsbury's Laws of England, 3rd edition volume II, page 91, paragraph 172. The passage is to the following effect : " If public officials or a public body fail to perform any public duty with which they have been charged, an order of mandamus will lie to compel them to carry it out, even though the time prescribed by statute for the performance of the duty may have passed. " This statement of law is based upon a decision in R. v. Revising Barrister for the Borough of Hanley. In view of the conclusion I have come to regarding the first point based, upon the merger of the orders of the Income-tax Officer and the Appellate Assistant Commissioner in that of the order of the Appellate Tribunal, it is unnecessary for me to express any final opinion on the other points canvaised before me. With regard to the first point of merger, Shri Kirpal contended that this particular aspect was not the subject-matter of appeal before the Appellate Assistant Commissioner and the Tribunal, and, therefore, there had been no merger. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilal's case, for the assessment year 1956-57, the Income-tax Officer had rejected the explanation of the assessee in regard to an item of cash credit in its account books and treated a sum of Rs. 40,000 as income from undisclosed sources and added to this the income of the assessee from the registered firm, from house property and from business, and the business loss carried forward from the assessment year 1955-56 was set off against the total. On appeal, the Appellate Assistant Commissioner reduced the quantum of income from undisclosed sources to Rs. 30,000. The matter was taken up in further appeal to the Tribunal. When the appeal was pending before the Tribunal, the Income-tax Officer initiated proceedings under section 35 of the Income-tax Act, 1922, and rectified the assessment on the basis that the sum of Rs. 30,000 having been treated as income from undisclosed sources and not as business income, the assessee was not entitled to set off the business losses of the assessment year 1955-56 against that sum. It was to quash this order of the Income-tax Officer under section 35 of the Act, a writ petition in that case was filed. One of the points urged against the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived by him plus the estimated cost of materials ; and (iii) the percentage to be applied on the total amount for the purpose of estimating the profits of the petitioner for the relevant year. As far as the first aspect is concerned, I must proceed on the basis that when the petitioner offered to be assessed at the rate of 10% on Rs. 1,65,638 he had admitted his liability to be taxed for that year. As a matter of fact, in view of the decision of the Patna High Court in Sri Sukhdeodas Jalan v. Commissioner of Income-tax there could not be any dispute or doubt about the liability of the petitioner to be assessed for that year and as a matter of fact, the learned counsel for the petitioner did not dispute that liability. Once this is excluded, what remained were the total receipts and the rate to be applied with reference thereto for arriving at the profits of the year. Both the total receipts as well as the rates to be applied for arriving at the profits were the subject-matter of the appeals before the Appellate Assistant Commissioner and the Tribunal and the learned counsel for the petitioner admitted this position. In view of this, I am of the view that the two decisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
