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Commissioner of Income-tax Vs. Ram Dayal Varma - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberIncome-tax Reference No. 467 of 1969
Judge
Reported in[1973]90ITR426(All)
ActsIncome Tax Act, 1922 - Sections 35; Income Tax Act, 1961 - Sections 154
AppellantCommissioner of Income-tax
RespondentRam Dayal Varma
Appellant AdvocateR.R. Misra, Adv.
Respondent AdvocateT.P. Asthana and ;S.P. Kapoor, Advs.
Excerpt:
- - the facts in that case were clearly distinct from the facts in the present case in which the proceedings were initiated not under section 35 of the 1922 act but after the enforcement of the 1961 act, 5. even though it may be that the order could not be passed under section 154 of the 1961 act, yet the order will not become null and void if the income-tax officer had authority to pass the order he did......tribunal was correct in holding that the order under section 154 of the income-tax act, 1961, was null and void for the assessment year 1957-58 '2. the assessment against ram dayal varma, assessee, was made under the provisions of the indian income-tax act, 1922, and was completed on 23rd march, 1962. the income-tax officer, alter the enforcement of the income-tax act of 1961, issued a notice to the assessee under section 154 of the said act and passed an order under section 154 on 17th february, 1966. the assessee, feeling aggrieved, went up in appeal but the appeal was dismissed by the appellate assistant commissioner. the assessee filed a second appeal which was allowed by the tribunal. the tribunal held that the proceedings in respect of the assessment in question for the.....
Judgment:

H. Swarup, J.

1. The question referred to us by the Income-tax Appellate Tribunal at the instance of the Commissioner of Income-tax is whether, ' on the facts and in the circumstances of the case, the Tribunal was correct in holding that the order under Section 154 of the Income-tax Act, 1961, was null and void for the assessment year 1957-58 '

2. The assessment against Ram Dayal Varma, assessee, was made under the provisions of the Indian Income-tax Act, 1922, and was completed on 23rd March, 1962. The Income-tax Officer, alter the enforcement of the Income-tax Act of 1961, issued a notice to the assessee under Section 154 of the said Act and passed an order under Section 154 on 17th February, 1966. The assessee, feeling aggrieved, went up in appeal but the appeal was dismissed by the Appellate Assistant Commissioner. The assessee filed a second appeal which was allowed by the Tribunal. The Tribunal held that the proceedings in respect of the assessment in question for the assesssment year 1957-58 could not be commenced under Section 154 of the Income-tax Act, 1961. It came tq the conclusion that the order passed by the Income-tax Officer was, in the circumstances, null and void and accordingly allowed the appeal without going into the merits of the case. It also held that in the view it was taking it was not necessary to consider the merits of the assessee's claim. At the instance of the Commissioner of Income-tax the question stated above has been referred to us.

3. Proceedings under Section 154 of the Income-tax Act, 1961, can normally be taken in respect of the assessments made after the enforcement of the Income-tax Act, 1961, According to Section 297(2Xa) of the said Act where the return of income has been filed before the commencement of that Act by any person for any assessment year, proceedings for the assessment of that person for that year may be taken and continued as if that Act had not been passed. Hence, in respect of the present assessment, proceedings had to be taken by disregarding the provisions of the Income-tax Act, 1961. Section 297 also does not specifically provide for proceedings under Section 154 of the Income-tax Act in respect of the assessment for which a return had been filed prior to the commencement of the 1961 Act. In the case of Sankappa v. Income-tax Officer, [1968]68 I.T.R. 760;[1965] 2 S.C.R. 674(S.C.) it was held by the Supreme Court that the proceedings taken for rectification of an assessment to tax either under Section 35(1) or Section 35(5) of the 1922 Act were proceedings for assessment and the order passed under Section 35(1) rectifying the assessment would be an order altering the assessment order made in proceedings for the original assessment. Hence, so long as the assessment proceedings were covered by the exception contained in Section 297(2)(a) of the 1961 Act, no order modifying an assessment made under the provisions of the 1922 Act could be made under Section 154 of the 1961 Act.

4. Learned counsel for the Commissioner has referred to the case of Indra Singh & Sons Private Ltd. v. Union of India, [1967] 64 I.T.R 501 (Cal.) for the contention that the proceedings under Section 154 of the 1961 Act can be taken even in respect of the assessments made under the provisions of the 1922 Act. But, in that case, proceedings had been initiated under Section 35 of the 1922 Act and the same were completed after the 1961 Act came into operation. The facts in that case were clearly distinct from the facts in the present case in which the proceedings were initiated not under Section 35 of the 1922 Act but after the enforcement of the 1961 Act,

5. Even though it may be that the order could not be passed under Section 154 of the 1961 Act, yet the order will not become null and void if the Income-tax Officer had authority to pass the order he did. Mere mention of a wrong provision of law would not make the order null and void. The proceedings, by virtue of Section 297(2)(a), had to be governed by the provisions of the 1922 Act and by disregarding the provisions of the 1961 Act. The provisions of Section 35 of the 1922 Act, when compared with the provisions of the 1961 Act, do not disclose any material difference. Substantially, the provisions of the two sections are the same and the power of the Income-tax Officer to make the rectification is also the same. There is no doubt that the Income-tax Officer could have passed the order he did on February 17, 1966, under Section 35 of the 1922 Act.

6. We are, however, not examining the case from the point of view whether the order could justifiably be passed on the merits by the Income-tax Officer, but only examining if the order passed by him was null and void. As the Income-tax Officer had the jurisdiction to pass the order he did, the order cannot become null and void simply because he proceeded to make the order by applying Section 154 of the 1961 Act instead of Section 35 of the 1922 Act.

7. We accordingly answer the question referred to us in the negative. The parties shall bear their own costs. Counsel's fee is assessed at Rs. 200.


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