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TMI Blog1976 (9) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... Act "). In respect of the assessment year 1964-65 the petitioners were assessed both under the Income-tax Act and the Surtax Act. The order of assessment under the Surtax Act was made on March 30, 1972, and, as is shown by the said assessment order, the designation of the officer who made the said order was Surtax Officer, Companies Circle I(9), Bombay. Being aggrieved by this order of assessment the petitioners filed an appeal to the Appellate Assistant Commissioner, which was dismissed on February 27, 1973. The petitioners thereupon filed a second appeal to the Income-tax Appellate Tribunal. This appeal too was dismissed by the Tribunal's order dated January 22, 1974. Thereupon, the petitioners applied to the Tribunal under section 256( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovember 10, 1975, the petitioners' petition was allowed and the Tribunal directed to make a reference as desired by the petitioners. On that day the petitioners gave an undertaking to the court to pay such additional court fees as may be found payable in respect of the said petition. In order to understand the precise nature of the controversy between the parties it is necessary first to set out certain statutory provisions. Under section 5(1) of the Bombay Court Fees Act, 1959, the court fees are payable as provided by the relevant articles in the Schedules to the said Act. Schedule I provides for ad valorem fees, while Schedule II provides for a fixed fee. Article 16 of the said Schedule I is as follows : " 16. Application or petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of which he is assessable or of the amount of refund due to such other person. " Under section 6 of the Surtax Act the assessment under the Surtax Act is to be made by an Income-tax Officer. There is a provision for appeal to the Appellate Assistant Commissioner and for a further appeal to the Appellate Tribunal. Section 18 of the Surtax Act provides as follows : " 18. Application of provisions of Income-tax Act.--The provisions of the following sections and Schedules of the Income-tax Act and the Income-tax (Certificate Proceedings) Rules, 1962, as in force from time to time, shall apply with such modifications, if any, as may be prescribed, as if the said provisions and the rules referred to surtax instead of to income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax Act, that is, it is to bear the meaning which has been given to it by clause (1) of section 2 of the Surtax Act and not by clause (7) of section 2 of the Income-tax Act. We have already seen the definition of " assessee " given in the Surtax Act. The definition of " assessee " as contained in clause (7) of section 2 of the Income-tax Act is as follows : " ' assessee ' means a person by whom any tax or any other sum of money is payable under this Act, and includes-- (a) every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of the judgment their Lordships of the Supreme Court referred to several well-known formulae employed for effecting incorporation. Some of these formulae are, as pointed out by the Supreme Court : " ..... shall, for that purpose, be deemed to form part of this Act in the same manner as if they were enacted in the body thereof ; " and " The provisions of section ......... of the said Act ...... shall apply as if they were herein re-enacted. " Mr. Sanghavi has laid considerable emphasis upon the fact that under section 18 of the Surtax Act what is made applicable in express terms are not certain sections of the Income-tax Act as they stood at the date of the passing of the Surtax Act but the said sections of the Income-tax Act "as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 256 does not apply to the Surtax Act in the exact form in which it occurs in the Income-tax Act. It applies with the modifications made in it by section 18 of the Surtax Act, namely, that the word "assessee" is to bear the meaning given to it by clause (1) of section 2 of the Surtax Act and not by clause (7) of section 2 of the Income-tax Act. If there were any modifications made hereafter in the said section 256 by the rules made under the Surtax Act, though no such modifications have been made till today, then the said section 256 as applicable to the Surtax Act would be the said section 256 as further so modified. In this connection, it is also pertinent to note that in the assessment order the designation of the assessing officer i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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