TMI Blog1972 (4) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Income-tax Act, 1922 (hereinafter referred to as " the 1922 Act "). An amount of Rs. 9,187 was allowed as development rebate to the assessee under clause (vi) of sub-section (2) of section 10 of 1922 Act, regarding bus No. PNR 1601. Subsequently, the assessee sold the bus before the expiry of the statutory period of eight years. The Income-tax Officer issued a notice of rectification and withdrew the development rebate under section 155 of the Income-tax Act, 1961 (hereinafter referred to as " the 1961 Act "). The assessee filed an appeal before the Appellate Assistant Commissioner who reversed the order of the Income-tax Officer holding that, since the original assessment was made under the old Act, the rectification could also be made under the same Act and as an order of rectification had been made under the 1961 Act, therefore, it was bad. An appeal was taken by the revenue to the Income-tax Tribunal which also confirmed the order of the Appellate Assistant Commissioner. The Commissioner of Income-tax requested the Tribunal for making reference of this matter to the High Court and the Tribunal referred the following question to this court : " Whether, on the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us year and make the necessary amendment ; and the provisions of section 154 shall, so far as may be, apply thereto, the period of four years specified in sub-section (7) of that section being reckoned from the end of the previous year in which the sale or transfer took place or the money was so utilised. " He has drawn our attention especially to the words " under the corresponding provisions of the Indian Income-tax Act, 1922 ", which have been underlined, of the above section and also the words " notwithstanding anything contained in this Act " which have also been underlined. On the basis of the above phraseology he contends that in case any allowance for development rebate has been made wholly or partly to the assessee in respect of any machinery installed after 31st December, 1957, in any assessment year under section 33 of the 1961 Act or under the provisions of the Indian Income-tax Act, 1922, that could be rectified under the aforesaid provision. According to him the words " development rebate made under the corresponding provisions of the Indian Income-tax Act, 1922 ", make it clear that even if the development rebate had been allowed under the 1922 Act, the rectificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 Act was applicable to the present case and rectification could be made of the order of the Income-tax Officer under that provision, even then the order is good, as the citation of a wrong section in the order will not make it invalid, if the Income-tax Officer has jurisdiction to rectify the same. He has taken support for this proposition from L. Hazari Mal Kuthiala v. Income-tax Officer, Special Circle, Ambala Cantt. In the said case the Commissioner of Income-tax purporting to act under sections 5(5) and 5(7A) of the Indian Income-tax Act, 1922, made an order on November 4, 1953, that the assessment of the assessee-firm would be done by the Income-tax Officer, Special Circle, Ambala, and not by the Income-tax Officer at Patiala, who was the competent authority under section 34 of the 1922 Act to assess the firm. In 1955 the Income-tax Officer, Special Circle, Ambala, issued a notice under section 34 of the Patiala Income-tax Act, 2001, to the assessee-firm to reopen the firm's assessment for the accounting year 1945-46. The assessee contested the notice on the ground that the officer at Ambala had no jurisdiction as it was not issued under the Patiala Income-tax Act, 2001, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f rectification would not, therefore, be regarded as having been made without jurisdiction. A wrong reference to the power under which an order is made does not per se vitiate the order, if there is some other power under which the order could lawfully be made. " The learned counsel for the revenue had also referred to Giridharilal Jhajharia v. Commissioner of Income-tax, wherein the Bench of the Calcutta High Court observed : " The issue of a notice under section 154 of the Act of 1961, in respect of an assessment under the 1922 Act, would not deprive the officer of his jurisdiction to rectify the assessment under section 35 of the Act of 1922. To vest an officer with jurisdiction to rectify an assessment made under the Act of 1922, a notice under section 35 is not necessary. In this respect a proceeding for rectification under section 35 differs from a proceeding for reassessment under section 34 of the Act." The facts of that case were slightly different from the facts of the present case. In that case the notice was issued under section 154 of the 1961 Act, whereas the assessment was made under section 35 of the 1922 Act. The new order was challenged on the ground that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that proceedings for rectification under section 35(5) of the 1922 Act were not proceedings for assessment within the meaning of section 297(2)(a) of the 1961 Act and, therefore, the Act of 1922 could not be resorted to by the Income-tax Officer. The question which arose before the Supreme Court was different from that which is before us. The Supreme Court on an interpretation of section 297(2)9a) of the 1961 Act held that the word " assessment " as used in that section, that is, section 297(2)(a), comprehends the whole procedure for ascertaining the liability upon the taxpayer and it included proceedings for rectification of assessment to tax. The appeal was ultimately dismissed. The point which is canvassed before us was in fact never canvassed in that case. We do not find that the observations in that case are of any help to the assessees. The contention of Mr. Awasthy is correct that the aforesaid case is distinguishable and the respondent-assessee cannot take any benefit from the observations therein. We are in respectful agreement with the view enunciated in Hargopal's case and other cases referred to above and hold that if the authorities under the Income-tax Act ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
