9911796707
TMI Blog1972 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessment year 1959-60 by the Commissioner of Income-tax, the Income-tax officer considered it necessary to rectify the assessment orders passed in respect of the later two assessment years, viz., 1960-61 and 1961-62, which are now in question. He, accordingly, issued a notice under section 154 of the new Act, calling for objections, if any, from the assessee. After due formalities, the assessments were rectified under section 154 of the new Act. The assessee preferred appeals before the Appellate Assistant Commissioner and a preliminary objection was taken against the validity of the rectification made under section 154. The assessee's case before the Appellate Assistant Commissioner was that for the assessment years in question the rectification, if any, could be made only under section 35 of the old Act, and not under section 154 of the new Act. The Appellate Assistant Commissioner accepted the assessee's case, and held that the provisions of section 154 were not applicable for the purposes of rectification in respect of the assessment years in question. The department was dissatisfied with that order and filed an appeal before the Income-tax Appellate Tribunal. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensive sense and included all proceedings starting with the filing of the return or issue of notice and ending with the determination of the tax payable by the assessee. On that ratio the Supreme Court held that the proceedings for rectification of assessment of tax under section 35 of the Act were proceedings for "assessment ". It will be seen that in the case of S. Sankappa the notices for rectification were issued under section 154 of the new Act and no contention was advanced about the validity of the notices under the new Act. The Supreme Court also did not strike down the notices which were issued in that case when the authority of the revenue to rectify the assessment was impeached. In I.T.R. No. 45 of 1968 (Commissioner of Income-tax v. Metal and Mineral Corporation (P.) Ltd.) this very question was involved. The counsel for the revenue had then conceded that the case was governed by the decision in S. Sankappa's case. We decided the case accordingly. When the present case came up before us, counsel for the revenue submitted that after the coming into force of the new Act the Tribunal had given several decisions following Sankappa's case. The decision in Sankappa's case w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order. (4) When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it." According to their Lordships, it is only a question that has been raised before and decided by the Tribunal that could be held to arise out of this order, but they went on to add : " Section 66(1) speaks of a question of law that arises out of the order of the Tribunal. Now, a question of law might be a simple one, having its impact at one point, or it may be a complex one, trenching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different stand-points. All that section 66(1) requires is that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iala v. Income-tax Officer, Special Circle, Ambala was relied upon by a Division Bench of the Punjab High Court in Commissioner of Income-tax v. Hargopal Bhalla and Sons. There an assessment was made under section 143(3) of the new Act, when a return had been filed by the assessee on March 31, 1962, before the new Act came into force. Later on, the assessee filed a revised return on November 15, 1962. According to the provisions of section 297(2)(a) of the new Act, the assessment had to be made under section 23(3) of the old Act. The Tribunal set aside the assessment on the ground that it had not been made under the appropriate provision of law. The High Court held that the order passed by the Income-tax Officer under section 143(3) of the new Act should have been passed under section 23(3) of the old Act and could not be declared to be without jurisdiction and void in law. Shri Sharma, therefore, submitted that since the provisions of section 154 of the new Act are substantially the same as those contained in section 35 of the old Act, the impugned order cannot be questioned as being outside the scope of section 35 of the old Act. If the order is, therefore, treated as having bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter goes to the High Court it has to be dealt with in the light of evidence which has been already brought on record. If the statement of the case does not refer to the relevant and material facts which are already on the record the High Court may call for a supplementary statement under section 66(4) but the power of the High Court can be exercised only in respect of material and evidence which has already been brought on record. He also referred to another decision of the Supreme Court in C. P. Sarathy Muduliar. Commissioner of Income-tax and submitted that the High Court in exercise of advisory jurisdiction under section 66 of the old Act does not sit in appeal over the judgment of the Tribunal. If the High Court finds that material facts are not stated in the statement of the case or the Tribunal has not stated its conclusion on mnaterials facts, the High Court may call upon the Tribunal to submit a supplementary statment of case under section 66(4). He also referred to another decision of the Supreme Court in Kusumben D. Mahadevia v. Commissioner of lncome-tax None of these cases, however, appears to have any bearing on the question before us. It is not as if the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
