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Kalinga Saw Mills Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtOrissa High Court
Decided On
Case NumberS.J.C. No. 62 of 1973
Judge
Reported in[1975]99ITR102(Orissa)
ActsIncome Tax Act, 1961 - Sections 184(4)
AppellantKalinga Saw Mills
RespondentCommissioner of Income-tax
Appellant AdvocateB.K. Mohanty and ;P.K. Misra, Advs.
Respondent AdvocateStanding Counsel, Adv.
Cases ReferredHaji Mohd. Khalil Mohd. Farooq v. Income
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........was admittedly beyond time because such an opportunity would be in consonance with the rules of natural justice. the tribunal did not accept that contention and preferred to rely upon a later bench decision of the madras high court in pannalal ramkumar and co. v. income-tax officer : [1970]75itr309(mad) . mr. mohanty for the assessee contends that the reasoning given in the madras decision to distinguish the allahabad case has no basis. this is what the madras decision states on the point:' our attention has, however, been invited to haji mohd. khalil mohd. farooq v. income-tax officer. that was a case under the old act and the learned single judge considered that natural justice required that the income-tax officer should give an opportunity to show cause why the application should.....
Judgment:

R.N. Misra, J.

1. At the instance of the assessee under Section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as 'the Act'), the Appellate Tribunal has stated a case and referred the following question for determination of this court:

' Whether, in the facts and circumstances of the case, rejection of the claim of the assessee for registration is justified in law '

2. The year of assessment is 1967-68. M/s. Kalinga Saw Mills, the assessee, is a partnership firm. For the assessment year 1967-68, it was registered under the Act. In respect of that assessment year the firm continued with five partners till March 17, 1966, and with effect from March 18, 1966, three partners retired but the firm continued with the remaining two partners only, until the end of the accounting year which, according to Dewali was November 12, 1966. The assessee made application in Form 12 for continuing the registration of the firm and when the need for applying in Form 11A was realised the period was over. The proper application in Form 11A was made only on August 17, 1967, that is, after the year was over.

3. The Income-tax Officer, the Appellate Assistant Commissioner as also the Appellate Tribunal have taken the view that the assessee's application being out of time it was not entitled to registration. The rules confer jurisdiction on the Income-tax Officer to condone limitation and accept belated applications if sufficient cause for the delay is shown. Obviously, the assessee had never applied to the Income-tax Officer to invoke his jurisdiction in the matter of extension of time or condonation of the delay. Before the Tribunal reliance was placed in support of the assessee's case that he was entitled to a notice or an opportunity from the assessing officer before the application for registration was rejected, on Haji Mohd. Khalil Mohd. Farooq v. Income-tax Officer : [1962]46ITR458(All) . A learned single judge of the Allahabad High Court in that case took the view that the assessee was entitled to a notice even when the application was admittedly beyond time because such an opportunity would be in consonance with the rules of natural justice. The Tribunal did not accept that contention and preferred to rely upon a later Bench decision of the Madras High Court in Pannalal Ramkumar and Co. v. Income-tax Officer : [1970]75ITR309(Mad) . Mr. Mohanty for the assessee contends that the reasoning given in the Madras decision to distinguish the Allahabad case has no basis. This is what the Madras decision states on the point:

' Our attention has, however, been invited to Haji Mohd. Khalil Mohd. Farooq v. Income-tax Officer. That was a case under the old Act and the learned single judge considered that natural justice required that the Income-tax Officer should give an opportunity to show cause why the application should not be dismissed. With respect we are unable to share this view. As we said, the petitioner himself was the applicant and he is expected to know the law which makes it clear that if the application had not been made within the time specified, it could only be entertained if sufficient cause is shown for the delay to the satisfaction of the Income-taxOfficer. The assessee cannot convert his default into an occasion for pleading natural justice asking for an opportunity.'

4. We agree with Mr. Mohanty that no emphasis was available to be put on the fact that the Allahabad decision was under the old Act. The old law had also a similar provision. The real basis which has appealed to the Madras High Court seems to be that rules of natural justice are not embodied rules. They are intended not to supplement the law, but to supplant it. Where the rule is clear that the assessee has the benefit of applying to the Income-tax Officer to invoke his jurisdiction in the matter of extending time by condoning the delay, it cannot be said, falling back upon canons of natural justice that a duty is cast on the statutory authority to notify to the defaulting assessee to apply for invoking the statutory authority's jurisdiction. We agree with the view indicated in the Madras decision that a defaulting assessee has no occasion for pleading for natural justice because there can be no premium attached to the default. We, accordingly, agree with the Tribunal and would answer the question referred to us by saying :

' In the facts and circumstances of the case, rejection of the claim of the assessee for registration was justified in law.'

5. There would be no order as to costs.

B.K. Ray, J.

6. I agree.


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