9911796707
TMI Blog1977 (9) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... 967-68, the orders of the Appellate Tribunal were passed after April 1, 1971, viz., on November 30, 1971. (The significance of the date April 1, 1971, will presently appear). But, for the assessment year 1964-65, with which we are concerned in this reference, the order of the Tribunal was passed on August 22, 1970. After the Tribunal passed the said order, the Surtax Officer, acting under the provisions of section 14 of the Companies (Profits) Surtax Act, 1964, read with section 13 thereof, proceeded to take action by way of recomputation of the assessment and amendment of the assessment order. Sections 13 and 14 of the said tax Act are as follows : " 13. (1) With a view to rectifying any mistake apparent from the record, the Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surtax payable or refundable on the basis of such recomputation and make the necessary amendment and the provisions of section 13 shall, so far as may be, apply thereto, the period of four years specified in sub-section (1) of that section being reckoned from the date of the order-passed under the aforesaid sections of the Income-tax Act. " Section 254 (and a few of the other sections which it is unnecessary to notice) was introduced into section 14 by section 73 of the Taxation Laws (Amendment) Act, 1970, with effect from April 1, 1971. The question which, therefore, falls for determination in this reference is whether, in respect of an order of the Income-tax Appellate Tribunal, passed prior to April 1, 1971, when alone an order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 1970 with effect from April 1, 1971. Next, the right conferred is only to recompute the chargeable profits determined in any assessment under the Surtax Act ; and, third, that the said right of recomputation springs from any order, inter alia, under section 254 of the Income-tax Act. Subject to these, the Income-tax Officer is to recompute the chargeable profits and determine the surtax payable and take consequential action by way of amendment under section 13 of the Surtax Act. The period within which action has to be taken is 4 years from the date of the order passed--in this case--by the Tribunal under section 254 of the Act. It appears to us, on principle and to the extent to which we can gather from the provisions of the section, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as part of the " record ". The complicating feature in this case of the power itself having been conferred only on and from a certain date, and of the officer seeking to rectify the order passed on an anterior date, did not arise for consideration and was not dealt with in the judgment. In the next decision in Mahendra Mills Ltd. v. P. B. Desai, Appellate Assistant Commissioner of Income-tax [1975] 99 ITR 135 (SC) the concept of the term " record " with respect to section 35(1) of the Indian Income-tax Act, 1922, was expounded in a comprehensive sense so as to include not merely the order, but all proceedings on which the assessment is based. By reference to this decision, counsel for the revenue argued that there was a right of amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws expressed by the learned judge, we still hold that by sub-section (5) of section 35 the legislature intended that rectification should be made on the finding as to the incorrectness of the assessment of the firm after the provision was introduced in the statute book, viz., 1st April, 1952. There would have been nothing unjust or inequitable in the legislature directing that rectification of the assessment of the partner should always follow the assessment or reassessment of the firm made finally. On the other hand, we think rectification of the partner's assessment should logically follow the reassessment or modification of the firm's assessment. Otherwise, there would be an unaccounted for divergence between a person's assessment as an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
