TMI Blog1929 (7) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeded to assess the petitioners upon a total income of ₹ 22,000. On 29th June 1924 the Assistant Commissioner cancelled the assessment and directed a fresh assessment. Between this date and now the case has had, to use the words of the Income Tax Commissioner, a long and muddled history for which some of the orders passed by the officers of the Income Tax department are to some extent responsible. 3. It will suffice, however, for the purpose of considering the present application not to go further back than the order passed by the Commissioner of Income Tax on 15th December 1927. By this order he directed the Income Tax Officer to make a fresh assessment for the years 1923 and 1924 after calling for the accounts of the business in Calcutta and Monghyr. In pursuance of this order the Income Tax Officer of Monghyr issued a notice on 19th January 1928 under Section 22, Clause 4 and Section 23, Clause 2, calling for the books of account referred to in the order of the Commissioner and fixing 8th February 1928. On that date a petition was received by registered post by the Income Tax Officer in which it was stated that the account books had been destroyed and the assessee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sks us to hold that this petition is not maintainable. His first contention is that the application was not thrown out by the Commissioner of Income Tax on the ground that no question of law arose but on the ground that the application was out of time and this being so, the requirements of Section 66, Clause 3, are not fulfilled in this case and this Court is not competent to proceed under Section 66, Clause 3. The simple reply to this point, however, is that the Commissioner has elaborately dealt with the points of law raised by the petitioners in their application before him and the order passed by him makes it absolutely clear that he has refused to state the case not only on the ground that the application before him was out of time, but also that the ground that no question of law arose in the case. 6. The next point raised by the learned Counsel for the Income Tax Department was that the applications before the Commissioner of Income Tax as well as before this Court are out of time. It will be necessary here to refer to a few dates in order to appreciate the point raised by the learned Counsel. As I have already stated the Assistant Commissioner of Income Tax rejected the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the older, the order is always communicated to the party by post. This being so, it is urged that if the period of limitation is not computed from the date of the communication of the order it may mean great hardship to the party in certain cases because it is possible that the party may not know anything about the order until the period of limitation has expired. 9. Now if the learned advocate for the petitioners means to point out to us what should be the law, we would say that his argument deserves serious consideration. In the present case, however, our concern is not to lay down what should be the law, but to interpret the law as it stands. In doing so I have to say that I do not find anything in the language of the section to enable me to hold that the expression passing of the order should be interpreted as the communication of the order to the party. On the other hand it is noticeable that while under Clause 2, Section 66, time is to run from the passing of the order, it is to be computed under Clause 3 from the date on which the assessee is served with notice. Whether this distinction was deliberately made or whether at the time Clause 3 was being amended, the language ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be excluded. Now Section 29, Lim. Act as amended by Act 10 of 1922 provides as follows: Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by Schedule 1, the provisions of Section 3 shall apply as if such period were prescribed therefore in that schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law: (a) the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law, and (b) the remaining provisions of this Act shall not apply. 11. One of the sections referred to here is Section 12, Lim. Act, which provides that in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for review of judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded. Now, reading the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew was propounded I may refer to the case of Dropadi v. Hira Lal [1912] 34 All. 496 which was decided by a Full Bench of the Allahabad High Court. The following passage which occurs in the judgment of that case may be instructive: The question is one of considerable difficulty and it must be admitted that at first sight it is straining the words to hold that the application of the general provisions of the Limitation Act to period of limitation prescribed by other Acts does not affect or alter those periods. In one sense it certainly does. But the construction accepted by Stratchey, C.J., Banerji, J. and Muthusami Ayyar J. seems to us to be correct. Apart from the history of this piece of legislation, we find it difficult to believe that the legislature introduced, as it has, into several Acts, provisions giving right of appeal and prescribing period within which the right may be exorcised, it intended as a general rule that those provisions should be applied without reference to the general provisions contained in the general Limitation Act. In many, if not most, cases, the Civil Procedure Code is made applicable with the result that an appellant must produce a copy of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the time which was spent in obtaining a copy of the order with which he is dissatisfied. As it is conceded that if such time be excluded, the application of the petitioners both before this Court as well as before the Commissioner of Income Tax would be well within time, so in my opinion the preliminary objection raised by the learned Counsel for the Income Tax Department fails so far as it is based on the question of limitation. 15. There is, however, another point which seems to me to stand very much in the way of the petitioners. As I have already stated the petitioners were asked by the Income Tax Officer to produce their books of account but they did not produce them. They were given another opportunity to produce any such further evidence as they chose on 27th July 1928 but they neither appeared before the Income Tax Officer on the date fixed nor did they produce any evidence on that date. It is said that one of their applications did reach the Income Tax Officer on 28th and it being stated there that they would rely upon the findings of the Income Tax Officers of Calcutta and Darbhanga, it is contended that this would be sufficient compliance with the notices under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot serve a requisition on the Commissioner of Income Tax to state the case and refer it to the High Court. I have only to observe here that up to a certain point the petitioner had a good case. It is not clear how the assessment was made on a profit of ₹ 22,000 if the Officers of the department had found, as stated, a profit of ₹ 16,000 in Darbhanga and Monghyr against a loss of ₹ 14,735 in Calcutta. 17. Again, assuming that an appeal lay to the Assistant Commissioner of Income Tax in this case I do not see how the Assistant Commissioner of Income Tax could throw out the appeal merely because the demand notice was subsequently amended by the Income Tax Officer. A reference to Section 30, Income Tax Act, will show that the appeal lies against the assessment and it is only for the purpose of calculating the period of limitation that the notice of demand is referred to in Clause 2 of that section. The order of the Commissioner also is open to criticism on the ground that he has held that the application filed by the petitioner was time barred, although in our opinion it was not. These matters, however, cannot avail the petitioners in the present case, because ..... X X X X Extracts X X X X X X X X Extracts X X X X
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