TMI Blog1973 (8) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... l, Patna Bench, at the instance of the Commissioner of Income-tax, Patna. The question of law referred to this court runs as follows: " Whether, on the facts and circumstances of the case, the Appellate Tribunal was justified in holding that the assessment made on the assessee under section 34 was not valid in law ? " The facts leading to the making of this reference may be stated in a narrow compass. The assessee-company had made new constructions and installed new machineries, it appears, in the years 1956 and 1957. The assessment order for the assessment year 1959-60, the corresponding accounting period of which had ended on the 31st December, 1958, was passed by Shri S. N. Ratho, Income-tax Officer, Special Circle, Patna, on Septem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was silent on the point, it had to be assained that the proceeding was under the said provision of law. Apart from other defects pointed out in the notice, the Tribunal pointed out that the condition precedent for initiation of such a proceeding was not fulfilled inasmuch as the matter was not dealt with by the Commissioner at all, as required by the proviso to section 34(1)(a). In that view of the matter, the fresh assessment proceeding and the order were quashed. On being asked to state a case and refer the question of law to this court, the Tribunal has done it. On the facts of this case, it appears to us that really the proceeding if at all it could be covered, could be covered under clause (b) of sub-section (1) of section 34 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Income-tax Officer shall not issue a notice under clause (a) of sub-section (1) (i) for any year prior to the year ending on the 31st day of March, 1941 ; (ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains chargeable to income-tax which have escaped assessment or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the loss or depreciation allowance which has been computed in excess, amount to, or are likely to amount to, one lakh of rupees or more in the aggregate, either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed, not bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice was issued within the period of eight years. But then, the Tribunal has found that the approval or sanction of the Commissioner was not obtained, the reasons recorded by the Income-tax Officer were not forwarded to the Commissioner for his consideration and, therefore, the issuance of the notice and the initiation of the proceeding under section 34(1)(a) were bad in law. Learned counsel for the department submitted that on a correct interpretation of the proviso in a case where the amount of escaped income is less than a lakh of rupees and a notice has been issued within the period of eight years, approval of the Commissioner is not necessary. We have no difficulty in rejecting this argument as it is not borne out on a correct cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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