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TMI Blog1964 (1) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ex-partners of firm, Messrs. Mayaram Durga Prasad, which was a registered firm carrying on business of commission agency, speculation business and business in gur in his own account. The firm filed a return showing a loss of ₹ 6,099 for the assessment year 1950-51. During the investigation of the accounts for the assessment year the Income-tax Officer noticed certain cash credits in the books of the firm in various names totalling ₹ 45,500. The firm failed to prove the genuineness of the cash credits and the Income-tax Officer, therefore, added a sum of ₹ 45,500 as income for the assessment year 1950-51 as from an undisclosed source. The Appellate Assistant Commissioner confirmed this finding. On further appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1)(a) was issued on the 27th of September, 1958, for the assessment year 1949-50. The period of eight years, which is the normal period for making an assessment under the provisions of section 34(3) as it then existed was eight years. That eight years' period expired on the 31st March, 1958. The notice, therefore, which was issued on the 27th September, 1958, was, prima facie, barred by time. The only way in which the Income-tax Officer could have obtained jurisdiction to issue such a notice was by invoking the second proviso to section 34(3) of the Act. The relevant portion of this proviso reads: "Provided further that nothing contained in this section limiting the time within which any action may be taken or any order, assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rkar v. Pravinchandra Hemchand [1958] 34 I.T.R. 397, where the same view had already been taken. In that case the Appellate Assistant Commissioner, in allowing the appeal for the assessment year 1945-46, had further stated: "They could be assessed, if at all, for the tax year 1944-45 for which the Income-tax Officer may make assessments, if so advised." The words "if so advised" and "if at all" were held not to amount to a finding or direction in consequence of which or to give effect to which the notice was issued. In Lakshmi Narain Agarwal v. Income-tax Officer, Kanpur [1963] 47 I.T.R. 456, which was a writ matter following Pt. Hazari Lal's case [1960] 39 I.T.R. 265, it was held that the observation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. On facts, however, these cases are distinguishable. In the former the position was that the Appellate Assistant Commissioner had held that the amount of ₹ 31,000, which was added, was income from an undisclosed source but as it was argued for the assessee that the income fell in the assessment year 1945-46 and not in the year 1946-47, the said amount stood to be deleted from the assessment year 1946-47. The amount was accordingly directed to be deleted but it was further added that the Income-tax Officer will be at liberty to reopen the assessment for 1945-46 after including this amount in the assessment. In the latter case the position was that the Appellate Assistant Commissioner, after allowing the appeal, further stated: &q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction of this court. The Supreme Court in Calcutta Discount Co. Ltd. v. Income-tax Officer, Calcutta [1961] 41 I.T.R. 191 ; [1961] 2 S.C.R. 241, has observed as follows: "That though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in fit cases an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences....The existence of such alternative remedy is not however always ..... X X X X Extracts X X X X X X X X Extracts X X X X
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