TMI Blog1989 (1) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income-tax Act, 1961, for the assessment year 1971-72 ? The assessee is a Hindu undivided family. While completing the assessments for the assessment years 1968-69, 1969-70, 1970-71 and 1971-72, the Income-tax Officer allowed the amounts of Rs. 15,174, Rs. 17,063, Rs. 19,480 and Rs. 21,762, respectively, totalling Rs. 73,479, on account of the amounts payable by the assessee under the provisions of the Provident Funds Act. A writ petition in W. P. No. 2764 of 1966 was filed by the assessee objecting to the claim of the Provident Fund Commissioner and on August 12, 1969, the writ petition was allowed holding that to the employees of the assessee, the provisions of the Employees' Provident Funds Act and the Employees' Provident Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the adjudication in the writ petition became final on August 12, 1969, when the writ petition was allowed and no effective writ appeal had been filed against that and that the dismissal of the application for condonation of the delay would not in any manner affect the decision so that the assessment of the sum of Rs. 73,479 for the assessment year 1971-72 was in order. The Tribunal took the view that as the order in the writ petition became final on August 12, 1969, and the remission having occurred on a date in the accounting period ending on June 30, 1970, the Income-tax Officer correctly brought to tax the amount of Rs. 73,479 in the assessment year 1971-72 and accordingly restored the addition as made by the Income-tax Officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling of the application for condonation of the delay in C.M.P. No. 6738 of 1971 in any manner affected the adjudication in the writ petition disposed of on August 12, 1969. In order to effectively question the correctness of the decision in W. P. No. 2764 of 1966, an appeal therefrom ought to have been preferred within the time prescribed for the filing of such appeals. That, however, was not done and there was enormous delay and the appeal itself was filed out of time with an application for condonation of the delay. That application was dismissed on December 8, 1971. The dismissal of that application did not imperil the decision in the writ petition and left its effect and operation totally untouched. We have, therefore, to hold that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had left the decision in the writ petition on the grounds stated therein wholly and totally unaffected. We are, therefore, of the view that the finality in the writ proceedings was attained on August 12, 1969, and not on December 8, 1971, and, in that event, on the strength of that adjudication, the allowance of the amounts paid towards the provident fund could be assessed only in the assessment year 1971-72 invoking section 41(1) of the Act. We may also refer in this connection to the decision in Erode Yarn Stores v. State of Madras [1963] 14 STC 724 (Mad), where the assessee contended that once an appeal is filed before the Tribunal, the Board is precluded from invoking its powers under section 34 of the Tamil Nadu General Sales Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Commissioner of Income-tax under section 264 of the Act, but that was rejected on the ground that the assessee had gone on appeal before the Appellate Assistant Commissioner and also before the Tribunal and, therefore, the revision preferred by the assessee cannot be maintained. It was held that the filing of an ineffective or incompetent appeal before the Appellate Assistant Commissioner or the Tribunal did not deprive the assessee of the right of revision under section 264 of the Act and that the revision before the Commissioner of Income-tax under section 264 of the Act was maintainable. In other words, the decision rendered was to the effect that an ineffective or incompetent appeal was, in the eye of law, no appeal at all pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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