TMI Blog1973 (9) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... T The judgment of the court was delivered by C. S. P. SINGH J. -The Income-tax Appellate Tribunal, Allahabad Bench, has referred the following questions : " 1. Whether, on the facts and in the circumstances of the case, the Commissioner having authorised an appeal against the order of the Appellate Assistant Commissioner for the assessment year 1960-61 was justified in passing an order under section 33B relying solely on the very order of the Appellate Assistant Commissioner for the purposes of holding that the order of the Income-tax Officer was erroneous in so far as it was prejudicial to the interest of revenue ? 2. Whether section 33B proceedings can be taken against the legal heirs of a deceased assessee, and if so, whether the proceedings taken in this case by issue of a notice on an heir who was the karta of the Hindu undivided family are valid ? 3. Whether the legality of an assessment which had become final could be challenged in the proceedings taken by the Commissioner of Income-tax under section 33B of the Indian Income-tax Act, 1922 ? " The assessee, Sunderlal, had filed a return for the assessment year 1959-60 on September 5, 1959, in response to a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Supreme Court in the case of Income-tax Officer v. S. K. Habibullah and held that the assessment order had to be taken as a valid order till such time that it was not set aside and this being so, this question could not be agitated in the appeal against the section 33B order. It also negatived the contention that the order under section 33B was invalid as it was passed against a dead person on the ground that the order having been served on Bankey Behari Lal, the karta and heir of the deceased, the order in question had to be treated as one passed against him and not against a deceased person. It, however, held that inasmuch as the Commissioner had authorised the filing of an appeal against the order of the Appellate Assistant Commissioner for the assessment year 1960-61, the Commissioner did not exercise his powers under section 33B in accordance with the law, and further that the Commissioner had not applied his mind to the matters in dispute, inasmuch as he had relied solely on the order of the Appellate Assistant Commissioner for passing the order. It also took the view that the proceedings under section 33B could not be taken against the heirs of a deceased ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied that the order passed by the Income-tax Officer is prejudicial to the interest of the revenue. This conclusion is further strengthened by the use of the words " if he considers " used in the sub-section which postulates a scrutiny by the Commissioner of all the relevant facts for holding that the order is prejudicial to the interest of the revenue. A perusal of the order of the Commissioner of Income-tax shows that after referring to the fact that the Appellate Assistant Commissioner had held that the amount in question was taxable in the assessment year 1959-60 and not in the assessment year 1960-61, and stating the reasons which led the Appellate Assistant Commissioner to come to this conclusion, the Commissioner of Income-tax held as under : " The Income-tax Officer had failed to assess the said capital gains in his order for the assessment year 1959-60. The Income-tax Officer's order under section 23(3) of the Indian Income-tax Act, 1922, dated February 6, 1964, was, therefore, erroneous in so far as it is prejudicial to the interest of the revenue ........ " It will be seen that no reasons at all have been given by the Commissioner of Income-tax for coming to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33B can be exercised after the death of an assessee. Now section 33B postulates revisional power being exercised only after giving an assessee concerned an opportunity of being heard. " Assessee " has been defined in section 2(2) of the Act as under : " 2. (2) 'assessee' means a person by whom income-tax or any other sum of money is payable under this Act, and includes every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the loss sustained by him or of the amount of refund due to him. " The result of this provision is that the Commissioner can pass an order under section 33B only after giving an opportunity to a person by whom income-tax or any other sum is payable under the Act or a person in respect of whom proceedings for assessment have been taken under the Act. So far as Bankey Behari Lal is concerned, he does not fall under the description of a person against whom the proceedings have been taken under the Act. He would, however, be a person by whom tax was payable because of the provisions of section 24B(1). This means that the revisional power could be exercised by the Commissioner in respect of an assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
