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Maganti Ramachandra Rao and Co. Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 4531 of 1970
Judge
Reported in[1974]95ITR147(AP)
ActsIncome Tax Act, 1922 - Sections 33A and 33A(2)
AppellantMaganti Ramachandra Rao and Co.
RespondentCommissioner of Income-tax
Appellant AdvocateT. Ramachandra Rao, Adv.
Respondent AdvocateP. Rama Rao, Adv.
Excerpt:
.....income-tax - revision petition under section 33a filed along with application for condonation of delay - commissioner rejected revision petition and application for condonation of delay - under section 33a commissioner can condone delay in filing application - commissioner to consider whether sufficient cause to consider delay exit - held, case remitted back to commissioner for considering sufficient cause for condonation of delay. - - under section 33a(2) the commissioner may on application by an assessee for revision entertain a revision petition presented after the expiry of one year if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period. i am not satisfied on a perusal of the order that the commissioner applied his..........which, according to the income-tax officer, ought to have been included in the return for the assessment year that ended with december 31, 1957.4. while submitting his return for the next assessment year, viz., 1959-60, the assessee included this item of rs. 24,500 in his taxable income for the year. the position, therefore, was that according to the assessee this amount was taxable in the assessment year 1959-60 and not in the earlier year. the return for the year 1959-60 was accepted and an assessment was made which included the item of rs. 24,500.5. after the appellate assistant commissioner passed the order dated february 28, 1967, the assessee applied for rectification of his assessment, but his application in that behalf was rejected by the income-tax officer on may 4, 1967.6......
Judgment:

Parthasarathi, J.

1. This is an application under Article 226 of the Constitution for a writ of certiorari for quashing the order of the Commissioner of Income-tax made on February 23, 1970.

2. The facts that have given rise to the writ petition may briefly be stated. The petitioner, a partnership, was assessed in respect of the income for the year ended December 31, 1957, by the order dated August 22, 1959. The income on foot of which the petitioner was taxed was determined at Rs. 46,254. The assessment was reopened by the Income-tax Officer who came to the conclusion that the assessee should be taxed in respect of a further sum of Rs. 50,000. The order of revised assessment was made on July 23, 1963. There was an appeal preferred by the assessee, the result of which was that he has succeeded in part and the addition to the income was determined at Rs. 24,500. The order of the Appellate Assistant Commissioner was made on February 28, 1967.

3. It may be mentioned that the sum of Rs. 24,500 which was added to the taxable income represents the value of the closing stock, which, according to the Income-tax Officer, ought to have been included in the return for the assessment year that ended with December 31, 1957.

4. While submitting his return for the next assessment year, viz., 1959-60, the assessee included this item of Rs. 24,500 in his taxable income for the year. The position, therefore, was that according to the assessee this amount was taxable in the assessment year 1959-60 and not in the earlier year. The return for the year 1959-60 was accepted and an assessment was made which included the item of Rs. 24,500.

5. After the Appellate Assistant Commissioner passed the order dated February 28, 1967, the assessee applied for rectification of his assessment, but his application in that behalf was rejected by the Income-tax Officer on May 4, 1967.

6. On December 26, 1967, the assessee presented a revision petition under Section 33A of the Indian Income-tax Act, 1922 (hereinafter referred to as' the Act ') The assessee also presented an application for condonation of the delay.

6. By the impugned order dated February 23, 1970, the Commissioner of Income-tax rejected the revision petition and he also declined to condone the delay.

7. It appears to me that the application for the condonation of delay has not been considered in the proper perspective by the Commissioner. The sentence relating to the condonation of delay reads thus :

' This revision petition is admittedly belated and I see no justification for condoning the delay. '

8. To say that the application is admittedly belated may not be quite correct. The stand taken by the petitioner is that in one view of the matter there was no delay at all. The hypothesis on which the argument was presented was that the order made by the Appellate Assistant Commissioner in respect of the assessment year 1958-59 furnished the starting point for limitation for revision petition. This hypothesis was rejected by the Commissioner. In other words, the Commissioner did not accept the stand of the petitioner that the revision petition was in time.

9. Mr. Ramachandra Rao, who appears for the petitioner, does not accept the Commissioner's finding as correct. His argument before me is two-fold. In the first place he submits that the Commissioner did not apply the law correctly when he came to the conclusion that the cause of action to the assessee for the revision petition arose on the decision made by the Appellate Assistant Commissioner. I do not think it necessary for me to express any conclusion on this aspect in view of my conclusion on the second submission made by the counsel,

10. The second submission is that the Commissioner did not apply his mind to the question whether there was sufficient cause for the condonation of delay, I have gone carefully through the order of the Commissioner. Under Section 33A(2) the Commissioner may on application by an assessee for revision entertain a revision petition presented after the expiry of one year if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period. A reading of Sub-section (2) of Section 33A makes.it clear that it is incumbent on the Commissioner, when an application for condonation of delay is made, to consider whether a sufficient cause has been made out by the petitioner for condonation of the delay. I am not satisfied on a perusal of the order that the Commissioner applied his mind to the question whether a sufficient cause had been made out for the condonation of the delay. I have already extracted the only sentence in the order which has a bearing on the question of delay. Neither that sentence nor the order taken as a whole gives any indication that the question whether sufficient cause exists was considered by theCommissioner. It is, therefore, necessary that the matter should be remitted to the Commissioner for considering whether sufficient cause has been made out for accepting the revision petition filed beyond the prescribed time.

11. It may be mentioned that Mr. Ramachandra Rao contends that the Commissioner fell into an error in thinking that there is a delay of 7 years, 3 months and 4 days. According to counsel the occasion for presenting a revision petition cannot be said to have arisen prior to the reopening of the proceedings for the assessment year 1958-59. The order in that respect was made only in 1963. Counsel, therefore, contends that the Commissioner's assumption that there was a delay of 7 years and odd is untenable. It is not necessary for me to go into this question here since the matter is being remitted to the Commissioner. It is open to the petitioner to draw the attention of the Commissioner to his contention that the delay, even if it exists, is much less than what it was assumed to be.

12. Mr. Rama Rao, appearing for the Commissioner, has submitted that the application presented by the petitioner does not, even taken at its face value, make out a sufficient cause and consequently it was not incumbent on the Commissioner to deal with the question whether sufficient cause in fact existed. This again is a matter on which it is not for me to pronounce a final opinion. It is for the Commissioner to decide on a review of all the material whether sufficient cause for the condonation of delay is made out. One thing, however, is clear that the petitioner has not been lacking in diligence and has been pursuing the proceedings concerning the assessment for 1958-59 and has preferred a revision petition within one year from the date of the order of the Appellate Assistant Commissioner.

13. It is also indisputable that, had the Appellate Assistant Commissioner upheld the appeal in toto, there would not have been any need for a revision petition, for, then, the petitioner could not have had any grievance at all. Where a litigant pursues a proceeding open to him at law and the pursuit thereof is in conformity with the prescribed procedure, he cannot be said to be under a legal compulsion to institute a parallel proceeding by anticipating an unfavourable verdict in one proceeding and to provide for the contingency of his failure therein. The success in the proceeding taken by him obviates the need for the other proceeding. . In such cases on the basis of normal juridical standards it must be held that the cause of action for the alternative procedure arises only on the termination of the other proceeding. Law discountenances multiplicity of proceedings and does not subject litigants to the burden of parallel or multiple proceedings when success in one would preclude the need for the initiation of another. It appears to me that there is no need here for a departure irom that salutary and well-known principle. No litigant should, on pain of the penalty of limitation, be under duress to conduct concurrently two pro-ceedings where the need for one would depend on the failure to secure a favourable result in the other.

14. The petitioner was already assessed to pay the tax on the very same item of income and his efforts to have the rectification of the later assessment were also thwarted. All these are matters that have a bearing on the question whether a sufficient cause for condonation of the delay is established. The Supreme Court has laid down in cases under Section 5 of the Limitation Act that the words 'sufficient cause' should not be construed in a pedantic or narrow sense. The facts of the present case do not justify the somewhat summary method by which the petition for the condonation was negatived. Where a litigant in his own manner has been diligently or bona fide agitating for the recognition of a claim and the ultimate adverse result therein makes it necessary or forces him to seek another remedy, the technical delay, if any, is more often than not ignored or condoned by courts.

15. The Commissioner will now consider the revision petition of the petitioner for the condonation of delay in the light of the observations made herein.

16. In view of what has been stated above the rule nisi is made absolute. The petitioner will have the costs of this writ petition. Advocate's fee, Rs. 100.


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