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J.K. Commercial Corporation Ltd. Vs. Income-tax Officer and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ Nos. 3251, 3252, 3253 and 3254 of 1968
Judge
Reported in[1969]73ITR464(All)
ActsIncome Tax Act, 1922 - Sections 23A and 35
AppellantJ.K. Commercial Corporation Ltd.
Respondentincome-tax Officer and anr.
Appellant AdvocateC.S.P. Singh, Adv.
Respondent AdvocateShanti Bhushan and ;Rishi Ram Misra, Advs.
Excerpt:
- - rishi ram, on the other hand, contends on behalf of the income-tax department that the word 'assessment 'is of vast amplitude and it clearly means an order by which liability to pay the tax is created. section 35, so far as relevant for our purpose, reads :the commissioner or appellate assistant commissioner may, at any time within four years from the date of any order passed by him in appeal or, in the case of the commissioner, in revision under section 33a and the income-tax officer may, at any time within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be, and shall within the like period rectify any such mistake which has..........upon c. a. abraham v. income-tax officer, [1961] 41 i.t.r. 425 (s.c.) for the proposition that the word 'assessment' has different meanings and upon kadawati devi harlalka v. commissioner of income-tax, [1967] 66 i.t.r. 680 (s.c.) for the proposition that the word 'assessment' has a very comprehensive meaning. these two cases, however, did not deal with the interpretation of that word as used in section 35 of the act and did not relate to the proceedings under that provision. section 35, so far as relevant for our purpose, reads :' the commissioner or appellate assistant commissioner may, at any time within four years from the date of any order passed by him in appeal or, in the case of the commissioner, in revision under section 33a and the income-tax officer may, at any time within.....
Judgment:

Jagdish Sahai, J.

1. In these four connected writ petitions the same question of law arises and for that reason they are being disposed of by this common judgment.

2. Writ Petitions Nos. 3251 of 1968 and 3252 of 1968 have been filed by M/s. J.K. Commercial Corporation Ltd. The first writ petition is in connection with the assessment year 1955-56 and the second one relates to the year 1956-57.

3. Writ Petitions Nos. 3253 of 1968 and 3254 of 1968 have been filed by M/s J.K. Synthetics Ltd. The first one relates to the year 1955-56 and the second one relates to the year 1956-57. The petitioners were assessed in respect of the years mentioned above by the Income-tax Officer. Subsequent to the assessment, the Income-tax Officer concerned started proceedings under Section 23A of the Income-tax Act, 1922, against the petitioners and passed an order under that section. However, later on, under Section 35 of the Act he wanted to rectify the order passed under Section 23A. The petitioners objected on the ground that an order passed under Section 23A is not an order of assessment and, consequently, no rectification in respect of the same could be made. The Income-tax Officer overruled the plea and on January 18, 1960, rectified the order passed under the provisions of Section 23A. The petitioners filed a revision application before the Income-tax Commissioner but the same was dismissed on September 18, 1963.

4. The question that requires consideration by us is whether the Income-tax Officer concerned had jurisdiction to rectify an order passed under Section 23A of the Act. Mr. C.S.P. Singh, the learned counsel for the petitioners, has contended that the word ' assessment ' as used in Section 35 of the Act means an assessment order passed under the charging section. He contends that an order passed under Section 23A not being an order passed under the charging section is not an assessment order within the meaning of Section 35 of the Act.

5. Dr. Rishi Ram, on the other hand, contends on behalf of the income-tax department that the word ' assessment ' is of vast amplitude and it clearly means an order by which liability to pay the tax is created. He has relied upon C. A. Abraham v. Income-tax Officer, [1961] 41 I.T.R. 425 (S.C.) for the proposition that the word 'assessment' has different meanings and upon Kadawati Devi Harlalka v. Commissioner of Income-tax, [1967] 66 I.T.R. 680 (S.C.) for the proposition that the word 'assessment' has a very comprehensive meaning. These two cases, however, did not deal with the interpretation of that word as used in Section 35 of the Act and did not relate to the proceedings under that provision. Section 35, so far as relevant for our purpose, reads :

' The Commissioner or Appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or, in the case of the Commissioner, in revision under Section 33A and the Income-tax Officer may, at any time within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by any assessee ...'

6. We are concerned with the second part of this provision. This provision confers jurisdiction on an Income-tax Officer to rectify any mistakeapparent from the record of ... assessment or refund ...

7. The use of the words ' rectify any mistake apparent from the record of assessment ' instead of the words ' rectify any mistake in the assessment order ' do no doubt support the submission made on behalf of the income-tax department that any proceeding in the assessment record could be rectified. Clearly and admittedly, an order under Section 23A of the Act is appealable, and if an appeal is filed, then any mistake in the appellate order can admittedly be rectified by the Commissioner or the Appellate Assistant Commissioner, as the case may be, under this provision. If the appellate orders in such cases can be rectified it becomes difficult to see why an original order under Section 23A cannot be rectified. We are however, of the opinion that the matter is concluded by the Supreme Court decisions. In S. Sankappa v. Income-tax Officer, [1968] 68 I.T.R. 760 (S.C.) the Supreme Court observed:

' The salient feature of these and other orders is that the liability to pay tax arises not from the charge created by statute, but from the order of the Income-tax Officer. '

8. The learned judges followed the earlier decision of the court in M.M. Parikh, Income-tax Officer v. Navanagar Transport and Industries Ltd., [1967] 63 I.T.R. 663 (S.C.) Mr. C.S.P. Singh, the learned counsel for the petitioners, contends that S. Sankappa's case incorporates a categorical statement by the Supreme Court that an order under Section 35 of the Act must be an order where the charge is created by the statute and not by an order made by the Income-tax Officer.

9. We, therefore, allow these writ petitions and quash the impugned orders passed by the Commissioner and the Income-tax Officer against the petitioners under Section 35 of the Act. The parties are directed to bear their own costs.


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