TMI Blog1953 (9) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... r Sub-sec, (1) of this section shall be made after the expiry........ of four years from the end of the year in which the income, profits or gains were first assessable . The contention of the assessee, which was negatived by the departmental authorities and by the Appellate Tribunal, was that the assessment in question was made within the meaning of Section 34(2) of the Act only on 2nd April 1947, when the assessment order was communicated to him, and that that was more than four years after the close of the assessment year 1942-43. The Appellate Tribunal, agreeing with the Income Tax Officer and the Appellate Assistant Commissioner held that the assessment was made within the meaning of Section 34(2) of the Act on 24th March 1947. 3. In support of his contention that the assessment in question, that is, the assessment for the assessment year 1942-43, was not made within the meaning of Section 34(2) of the Act, till 2nd April 1947, on which date alone a copy of the assessment order was communicated to the assessee, the learned counsel for the assessee relied on 'Swaminathan v. Lakshmanan', AIR 1930 Mad 490 (A) and 'Muthiah Chettiar v. Commr. of Income tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on supports the Government Pleader to the extent that it shows that the date of the order and the date of communication may, in the contemplation of the legislature, be different dates, still it does not support the more important inference that the Act contemplates the starting of limitation before the communication of the order to the parties. As explained by Rajamannar C. J. in [1951] 19 ITR 402 (Mad) (B) it was for the limited purpose of computing the period of limitation that the expression the date on which the order was made was construed in '34 Mad 151 (D)' as the date on which it was communicated to the parties affected. In [1951] 19 ITR 402 (Mad) (B) the learned Judges negatived the contention, that the provision in Sub-section (2) of Section 33-A of the Income Tax Act was not really a provision prescribing the time limit for the exercise of the right of the party aggrieved, but that it imposed only a limit to the exercise of revisional powers by the Commissioner. Sub-section (1) of Section 33-A provided that the Commissioner could on his own motion exercise his revisional powers, provided the order had not been made more than one year previously. Sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for which Section 34 provided has to be made under Section 23 of the Act. Section 23 (1) provides for the assessment where a return submitted by the assesses under Section 22 is accepted as correct and complete by the Income Tax Officer. The Income Tax Officer has then to assess the total income of the assessee and determine the sum payable by him on the basis of such- return. Sub-section (4) of Section 23 provides for assessment where the assessee defaults compliance. In such cases the Income Tax Officer has to make the assessment to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment. Subsection (3) of Section 23 provides for assessment where the Income Tax Officer is not satisfied with the correctness of the return submitted by the assessee. In such cases, after issuing the notice under Sub-section (2) of Section 23 and after enquiry, the Income Tax Officer shall, by an order in writing, assess the total income of the assessee and determine the sum payable by him on the basis of such assessment. With reference to the assessment, a specific provision for an order in writing is made only under Sub-section (3) of Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 29 of the Act, that is, the sum payable by the assessee on the basis of the assessment of the income within the meaning of Sub-sections (1), (3) or (4) of Section 23. The assessment and the order of an assessment are steps to be taken by the Income Tax Officer. There is no question of anything further that has to be done by the assessee himself at that stage. As pointed out in [1951] 19 ITR 402 (Mad) itself, there could be no occasion to apply to such a case, the rule enunciated in '34 Mad 151 (D)' or AIR 1930 Mad 490 (A), and extended to application under Section 33-A of the Income Tax Act, which has designed to protect the interests of the assessee when he had to do something, that is, when he had to take steps within the period of limitation allowed by the law to avoid the order with which he felt aggrieved. 11. In 'Barlow v. Vestry of St. Mary Abbotts, Kensington', (1886) 11 AC 257 (P), the expression to be construed was an order made in writing on the person , who is directed to take the building down etc. Lord Watson observed at page 236: But it is admitted that, although the Magistrate announced the terms of his judgment on the 24th of Janua ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
