TMI Blog1969 (9) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer, Varanasi, passed an assessment order against the petitioner on April 1, 1966. On the strength of that assessment order, a notice was served upon her demanding a sum of Rs. 3,869.10 as income-tax for the assessment year 1953-54. The petitioner filed a revision against the assessment order dated April 1, 1966. The revision was dismissed by the Commissioner of Income-tax. Smt. Parbati Devi has, therefore, filed the present writ petition challenging the assessment order dated April 1, 1966, the order of the Commissioner of Income-tax dismissing the revision and the notice demanding payment of the sum of Rs. 3,869.10. It has been urged for the petitioner that the assessment was barred by time. It has been pointed out for the petitioner that the assessment for the year 1953-54 was made as late as April 1, 1966-twelve years after the close of the assessment year. The Indian Income-tax Act, 1922, was in force during the year 1953-54. Sub-section (3) of section 34 of the 1922 Act prescribed a rule of limitation as regards assessment. Section 34(3) of the 1922 Act ran thus: " No order of assessment or reassessment, other than an order of assessment under section 23 to which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (b) of sub-section (1) of section 153 are concerned. The learned Advocate-General, appearing for the department, relies upon clause (c) of sub-section (1) of section 153 of the Act. He points out that, in the present case, the assessment order was passed within one year from the date of the filling of the voluntary return by the petitioner. Clause(c) of sub-section (1) of section 153 refers back to a return filed under section 139 of the Act. It is, therefore, necessary to examine the provisions of section 139 of the Act. Section 139 provides for return of income. For purposes of section 153(1)(c) of the Act we are mainly concerned with sub-sections (4) and (5) of section 139. Sub-section (5) of section 139 states: " If any person having furnished a return under sub-section (1) or sub-section (2), discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the assessment is made." In the present case there is no indication that the petitioner had furnished any return before 1966. The case is not, therefore, covered by sub-section (5) of section 139 of the Act. Sub-section (4) of section 139 of the Act states: "Any person w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture and source of deposits. The Income-tax Officer was not satisfied with those explanations. He was about to assess the firm under section 34 of the 1922 Act. The partners approached the Inspecting Assistant Commissioner for a compromise and succeeded in persuading the department to drop proceedings under section 34 of the 1922 Act, and to accept voluntary returns from the partners disclosing amounts of deposits as their income in their respective returns. In paragraph 16 of the same counter-affidavit it is mentioned that, in pursuance of the compromise between the parties, the petitioner addressed a letter to the department. Annexure A to the counter-affidavit is a copy of the letter written on behalf of the petitioner to the Income-tax Officer, Varanasi. In that letter it was stated that the petitioner was submitting a return on compromise basis. The learned Advocate-General urged that, in view of the fact that the voluntary return had been filed on a compromise basis, the petitioner could not urge before the court that either the return or the assessment order was barred by time. In Jivatlal Purtapshi v. Commissioner of Income-tax there was an appeal before the Appellate Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imself, he could not raise any point about infringement of a fundamental right. In the present case we are dealing with a petition under article 226 of the Constitution. The scope of a petition under article 226 is wider than the scope of a petition under article 32 of the Constitution. The petition is not limited to the question of fundamental rights. Further, we note that in that case the petitioner himself came forward agreeing to pay a sum of Rs. 18,00,000 and odd as tax. In the present case it is true that the assessee filed a voluntary return. But there is no clear indication that she was agreeable to assessment of income-tax for the assessment year 1953-54. Thus, the facts of the present case are different from those in Seth Gopal Das Mohta v. Union of India. We have examined the terms of the compromise as indicated in Sri Shri Ram's counter-affidavit. The compromise was to the effect that the petitioner would file a voluntary return; and the department would drop the proceeding against the firm under section 34 of the 1922 Act. It is true that the petitioner agreed to file a voluntary return. But, there is no indication in annexure "A" to the counter-affidavit that there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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