TMI Blog1963 (10) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... or which no counter-affidavit was necessary, and that is that a writ of mandamus can never issue so long as the Income-tax Officer had jurisdiction to make the assessment. According to him there is no period of limitation at all in respect of an assessment made under section 23 of the Act to which the provision of section 28(1)(c) could be made applicable. In other words, his contention is that it is not obligatory on the Income-tax Officer to make any assessment within the period of four years and it would be open to him, theoretically speaking, to keep such an assessment pending beyond the period of four years and to justify the completion of the assessment after a number of years on the ground that the provisions of section 28(1)(c) were attracted. The question is whether that was the intention of the legislature in providing in section 34(3) that the normal period of four years for completing an assessment will not apply to an order of assessment under section 23 to which clause (c) of sub-section (1) of section 28 applies. Before dealing with this point it is necessary to set out, in brief, the past history of this case. The relevant assessment years are 1953-54 and 1954-55 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kanpur on the 24th April, 1963, in connection with the above case to explain as to why penalty under sections 271 and 273 of the Income-tax Act, 1961, be not imposed on him. The Income-tax Officer proceeded to issue a notice under section 22(4) and on the 15th April, 1963, and 18th April, 1963, for the two relevant assessment years respectively fixing the date as the 13th May, 1963. The Income-tax Officer earlier on the 16th July, 1959, even before the assessment was made or the petitioner could be said to be in default had also issued notices under section 46(5A) to the Upper India Sugar Exchange to withhold payment of the sums of ₹ 1,507.37 nP. and ₹ 2,963.36 nP. due by them to the petitioners, Messrs. Ram Bilas Kedar Nath. The present writ petition was filed on the 8th May, 1963. The learned standing counsel has conceded that a writ in the nature of certiorari may issue quashing all the notices issued under section 46(5A) to the Upper India Sugar Exchange Ltd. and also the penal notices issued from time to time under section 28(1)(a) of the Act relating to the proceedings under section 34(1)(a) of the Act. The only question for consideration, therefore, that remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lji Haridas's case(2), for the proposition that when the proviso to section 28(1)(c) can be invoked, there is no period of limitation and that such a question would not be one which went to the root of jurisdiction but was one which fell to be determined, like any other issue, at the time of the making of the assessment. The cases relied upon are clearly distinguishable. In Mir Suba Hari Bhakta v. Income- tax Officer [1960] 39 I.T.R. 617, 621 , the question that arose in a writ petition under article 226 of the Constitution was whether an assessment made under section 23(4) of the Act, beyond the period of limitation of four years, was justified on the ground that section 28(1)(c) applied. In that case it was observed: After the proceedings had been taken under section 22(4) and section 23(2) of the Income-tax Act and the Income-tax Officer had made all necessary enquiries, the stage arrived when the Income-tax Officer had to make an order under section 23(3) of the Income-tax Act, and at that stage he had to keep in view the provisions of section 34(3) of the Act so that he could not make a valid order of assessment unless that order was within the period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other case relied upon, that of Lalji Haridas v. Income-tax Officer [1961] 43 I.T.R. 387 (S.C.), the Supreme Court observed at page 390 that: Question of limitation under section 34(3) of the Act can and ought to be raised by the assessee before the Income-tax Officer and that it was not a point which could be legitimately agitated in writ proceedings. We, therefore, do not propose to deal with this point. If the appellant is so advised he may raise this point before the first respondent, and we have no doubt that if it is so raised the first respondent will deal with it in accordance with law. In the present case, in response to the notice issued under section 22(4) dated the 20th July, 1962, the petitioner had by his letter dated the 28th of July, 1962, pointed out to the Income-tax Officer that the assessment for both the years had become time-barred and could not be proceeded with further. No reply to the question of limitation raised was given by the Income-tax Officer and instead the penalty notice dated the 14th of January, 1963, under section 28(1)(a) was issued by the Income-tax Officer. The Income-tax Officer did not care to decide the question of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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