TMI Blog1968 (7) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... petition Mr. P. Rama Rao, the learned advocate for the petitioner, did not press the first point because it is concluded against him by a decision of the Supreme Court in S. Sangappa v. Income-tax Officer. He confined his arguments only to the second point. The facts, so far as they are material for deciding this point, are as follows : The petitioner was assessed in the status of a Hindu undivided family for the years 1949-50 and 1950-51. In the course of the assessment proceedings for 1950-51 it was represented to the respondent that the petitioner had got 0-8-0 share in the firm of M/s. Sriram Haricharandas, Bombay. The assessment of the petitioner for the assessment year 1950-51 was completed on October 30, 1953, wherein it was specifically mentioned that the assessment order was subject to rectification under section 35 of the Income-tax Act, 1922, as the share income belonging to the assessee in several firms including the firm of M/s. Sriram Haricharandas, Bombay, were not available at that time. The assessment of the firm of M/s. Sriram Haricharandas, Bombay, was completed on November 30, 1954, computing the total income of the firm at Rs. 26,00,000. Against that assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder under section 33A(2) of the Income-tax Act : Name of the assessee : M/s. Sriram Haricharandas. Assessment year : 1950-51. As a result of, the Commissioner of Income- tax's order dated August 31,1955, in the Revision Petition No. R.P.C. 6 of 1955-56, the Income-tax Officer was directed to modify the assessment on the basis of the books of accounts of the assessee. In this connection several appointments were given to the assessee, as a result of which some statements of accounts were filed but, after partial examination of accounts, the assessee adopted an un-co-ope rative attitude, with the result the examination of accounts remained completed half-way only. As the matter could not be kept pending indefinitely, a final opportunity was given to the assessee to produce the relevant books of account on January 16, 1963, but none attended on the due date or sent a written reply. It appears the assessee is no longer interested in pursuing the matter. In view of the above, the original estimate of the assessee's income of Rs. 26,00,000 is confirmed. Sd. V. R. Amin, Bombay, Income-tax Officer, Section IV the 29th Jan., 1963. (Central), Bombay." Subsequent to this, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 33A made by the Commissioner, and as the said order was passed on August 31, 1955, the period of four years from the said date had expired by the time the impugned order under section 35(5) was passed by the respondent and, as such, the order is without jurisdiction. Furthermore, a final order under section 33A contemplates an enhancement or a reduction of the assessment, and as in the instant case the order passed by the Commissioner under section 33A neither reduced nor enhanced the assessment, the four year period cannot be computed even from the date of the order under section 33A. The only order that should be taken into reckoning is the order made by the Income-tax Officer, Bombay, on November 30, 1954, under section 23(4)." In our opinion, this contention is manifestly untenable for the simple reason that it turns a blind eye to the true nature and effect of the order passed by the Commissioner of Income-tax under section 33A of the Income-tax Act, on August 31, 1955, and the consequential order passed by the Income-tax Officer, Bombay, on January 29, 1963. Even a bare reading of the Commissioner's order shows that the revision was entertained by him on an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed." It is plain, therefore, that what the Income-tax Officer passed was really a fresh assessment order, despite the fact that the original estimate was confirmed. What is of greater significance is that that order was not taken up in appeal or revision and it became the final order passed in the case of the firm, as contemplated by sub-section (5) of section 35. So that, the said order was in truth an order of assessment of the firm and was also the final order passed in the case of the firm. That being so, the period of limitation of four years should be reckoned as from the date of that order, that is to say, from January 29, 1963, and as the impugned order of rectification was passed by the respondent, i.e., Income-tax Officer, " A " Ward, Nizamabad, on March 16, 1965, it is well within time and is not open to attack on the ground that it is barred by limitation. The contention that a consequential order as the one passed by the Income-tax Officer, Bombay, is not contemplated by section, 35(5) is also devoid of substance. It was incumbent upon the Income-tax Officer to give effect to the order passed by the Commissioner. It was in obedience to the directions given by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. On appeal to the Supreme Court it was held that by his letter dated March 24, 1955, the Income-tax Officer had virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal was in effect a denial of justice. The order of the Appellate Tribunal having become final, it was not open to the Judicial Commissioner to hold that the order was wrong. As the Income-tax Officer had failed to carry out a legal duty imposed on him and such failure was destructive of a basic principle of justice, a writ of mandamus should issue ex debito justitiae to compel him to carry out the directions given by he Appellate Tribunal. In that view the Supreme Court reversed the judgment of the Judicial Commissioner. In the course of the judgment of the Supreme Court. S. K. Das J., speaking for the court, made the following observations : " We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter dated March 24, 1955. By that order the respondent virtually refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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