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Rajeshwar Pershad Vs. Commissioner of Income Tax, E.P., Pepsu Etc. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberWrit Appln. (Civil) No. 293 of 1955
Judge
Reported inAIR1956P& H74; [1955]28ITR842(P& H)
ActsIncome Tax Act, 1922 - Sections 33A, 34, 35 and 46(7)
AppellantRajeshwar Pershad
RespondentCommissioner of Income Tax, E.P., Pepsu Etc.
Appellant Advocate K.L. Gosain and; D.D. Khanna, Advs.
Respondent Advocate S.M. Sikri,; A.G. and; H.R. Mahajan, Advs.
DispositionPetition allowed
Cases ReferredNanhe Mal Janki Nath v. Commissioner of Income
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in his well known commentary on the indian income-tax act, shri a. it is well settled that mistake is not a mere forgetfulness but it is a slip made not by design but by mischance and it..........so far as they affect the tax-payer are to be found only in the income-tax act. whether the power of review or revision given in section 33a is executive or administrative or judicial need not be considered as all that one has to see is if he has acted or has purported to act under that section. no other provision of this act has been brought to my notice under which the commissioner could have passed the orderin question and therefore it must be taken that this order was passed under section 33a in exercise-of the statutory right given to him by this section. i may state here that admittedly both. income-tax officer and investigating assistant commissioner are subordinate to the commissioner and no appeal has been provided against an order of this kind when made by the income-tax.....
Judgment:
ORDER

Bishan Narain, J.

1. The facts out of which this petition under Article 226 of the Constitution of India has arisen are not in dispute and may be briefly stated thus.

2. The petitioner Rajeshwar Parshad was assessed for the year 1948-49 to pay Rs. 8.947/-as income-tax by order dated 28-6-1949. This amount was paid in due course. The Income-tax Officer, however, made a supplementary assessment on 24-3-1953 under Section 34, Income-tax Act, and raised the amount by an additional demand of Rs. 4,60,545/9/- and ordered the tax-payer to pay this amount by 30-3-1953. On petitioner's application the Income-tax Officer allowed him time for payment till 31-7-1953. The petitioner feeling aggrieved against this order applied to the Inspecting Assistant Commissioner, Patiala, for stay of collection of the assessed amount till the decision of his appeal and he was permitted to pay the amount in monthly instalments of Rs. 1,00,000/- each starting from 15-9-1953 by order dated the 28-8-1953. The petitioner then moved Shri P. K. Sen Gupta, the then Income-tax Commissioner, who after hearing both sides passed a detailed order on 14-10-1953. The operative portion of the order reads:

'In view of the 'prima facie' evidence adduced on behalf of the assessee, in my opinion, this is a fit case where the demand of tax should be stayed till the final decision of the point by the Tribunal in case the A. A. C. does not accept the assessee's contention. I would, however, direct the assessee to pay a sum of Rs 10,000/- as a token payment and the balance sum of Rs. 4,50,545/9/- will be stayed till the decision of the appeal by the Appellate Tribunal. In the meantime, the I. A. C. is requested to take steps to obtain from the assessee an undertaking not to sell 2 1/2 lac worth of shares in R. B. Banarsi Das & Co., Ltd., and another Rs. 2 lac worth of Government Securities. In this undertaking the specification of the shares and Government Securities should be fully given.'

It is common ground that the petitioner made the necessary payment and carried out the conditions laid down by the Commissioner in this order. In the meanwhile the assessee appealed against the assessment to the Appellate Assistant Commissioner on 21-4-1953. Certain proceedings were carried on after the filing of this appeal but they need not be noticed in detail here and it is sufficient to say that the appeal was not disposed of till 16-4-1955 when it was dismissed in default. But in the order of dismissal no date was fixed for payment of the tax. The petitioner has appealed to the Appellate Tribunal under Section 33 of the Act and this appeal has not yet been decided. During the pendency of the appeal before the Appellate Assistant Commissioner a notice was issued by the Commissioner of Income-tax (successor of Mr. P. K. Sen Gupta) on 18-11-1954 to the petitioner to showcause why the order dated 14-10-1953 staying the payment of tax should not be set aside and after hearing the parties the Commissioner sent notice on 25-7-1955 to the petitioner reading:

'Since your appeal for the assessment year 1948-49 has been rejected by the A. A. C. and since there is no statutory provision enabling me to keep the demand in abeyance, I request you to please make the payment of the outstanding tax by 15th September 1955 positively. In case you do not pay the tax by the date mentioned above, the Income-tax Officer will be free to enforce recovery according to law',

and it is this notice which has led to the present petition.

3. It has been argued on behalf of the petitioner that the order passed by the Commissioner on 14-10-1953 was an order under Section 33A, Income-tax Act, and is final and the effect of his successor's notice dated 25-7-1955 is to review or modify the previous order. It has been further urged that there is no provision in the Income-tax Act which' empowers the successor to review or modify the order passed under Section 33A and therefore the notice dated 25-7-1955 is without jurisdiction and this Court may set it aside or cancel it.

4. On the other hand, Shri S. M. Sikri, the learned counsel appearing for the Commissioner of Income-tax, has urged that the order of 14-10-1953 was not passed under Section 33A but was passed by the Commissioner in exercise of his administrative or executive Jurisdiction and therefore it could be recalled by his successor at his pleasure. It was also contended that even if it be considered that the 1953 order was made under Section 33A then although there is no specific provision giving power to the Commissioner or his successor to review it, this power is inherently vested in him. It was further urged that the 1953 order was beyond the jurisdiction of the Commissioner and therefore it was a nullity and it was open to his successor to ignore it and issue the notice that he did. The learned counsel stated that the 1955 notice was issued because after obtaining the order in 1953 the petitioner had been adopting the dilatory tactics which have resulted in delaying the disposal of his appeals. The notice in question was also sought to be justified on the ground of correction of mistake apparent from the record under Section 35, Income-tax Act.

5. In view of these contentions the main point that requires decision is whether the 1953 order is liable to be reviewed, modified or corrected by the successor.

6. Now it has been authoritatively laid down by their Lordships of the Privy Council in -- 'Commissioner of Income-tax, West Punjab, N. W. F. and Delhi Provinces, Lahore v. Tribune Trust, Lahore' , that the Code of Income-tax law exhaustively defines the obligations and remedies of the tax-payer. The Act prescribes both the remedy and the manner in which they may be enforced and they are to be found within the four corners of the Act. It follows from this that the powers of the Commissioner so far as they affect the tax-payer are to be found only in the Income-tax Act. Whether the power of review or revision given in Section 33A is executive or administrative or judicial need not be considered as all that one has to see is if he has acted or has purported to act under that section. No other provision of this Act has been brought to my notice under which the Commissioner could have passed the orderin question and therefore it must be taken that this order was passed under Section 33A in exercise-of the statutory right given to him by this section. I may state here that admittedly both. Income-tax Officer and Investigating Assistant Commissioner are subordinate to the Commissioner and no appeal has been provided against an order of this kind when made by the Income-tax Officer or the Investigating Assistant Commissioner. The learned counsel appearing for the Income-tax authorities has argued that Section 33A (1) has no application as there were no proceedings when the Commissioner called for the record, nor Section 33A (2) applies as the petitioner had not complied with Section 33A (3) under which every such application has to be accompanied by a fee of Rs. 25/-. To my mind whether the Commissioner acted under Sub-section (1) or (2) is not material in this case. There is no definition of the word 'proceedings' but it appears to me obvious that proceedings initiated by the petitioner under the Act requesting the Income-tax Authorities not to insist on payment of the assessed tax during the pendency of the dispute regarding his liability were still pending when the Commissioner called for the record as by that time the tax in question had not been paid by the tax-payer. Section 33A (2) cannot be said not to be applicable merely because the petition was not accompanied by the required fee. The power given to the Commissioner under Section 33A may have been erroneously exercised out that by itself will not show that it was exercised independently of the provisions of the Act. I am, therefore, of the opinion that the Commissioner's order dated 14-10-1953 was made under Section 33A, Income-tax Act. At that time the petitioner was anxious that he should not be compelled to pay the assessed tax in lump sum or by instalments before the final decision of his objections to the supplementary assessment. He moved the Income-tax Officer, then the Inspecting Assistant Commissioner and finally the Commissioner. The Commissioner passed the order after hearing. both the parties. In the circumstances, it must be held that the Commissioner proceeded with the case and passed the order on 14-10-1953 acting or purporting to act under Section 33A of the Income-tax Act and I hold accordingly.

7. It was then contended by Mr. Sikri that it was open to the Commissioner or his successor to review or modify the 1953 order in view of the subsequent conduct of the petitioner. The learned counsel conceded that the Income-tax Act does not specifically provide for review or amendment of certain order, but he relied on inherent jurisdiction which, according to him, vests in every authority when the Act does not provide any right of appeal or revision against the decision of certain authorities to the aggrieved party.

There is no doubt that the Income-tax Act does not provide for any appeal or revision against such an order passed by the Commissioner under Section 33A. It appears to me, however, that the Commissioner or his successor has no such power to review the previous order. A Commissioner becomes, to my mind, 'functus Officio' as soon as he passes an order under that section and his order is final. The legislature has granted this final supervisory power to the Commissioner and. it is unlikely that this supervisory power should be subject to modification subsequently by him or by his successor.

This power was withdrawn when the Appellate Tribunal was set up but soon afterwards itwas restored in a modified form. Now Section 27 gives power to Income-tax Officer to cancel the assessment made by him when sufficient cause for the same is shown to him by the assessee. There is no provision in the Act which gives a similar power to the Appellate Assistant Commissioner or the Tribunal or any other authority under the Act and it must be taken that it was not the intention of the legislature to give power of review to any authority other than the Income-tax Officer.

No direct authority has been brought to my notice which decides this question but it was raised in two cases. In -- 'Sachchidananda Sinha v. Commissioner of Income-tax, B. & O.' AIR 1924 Pat 644 , the Commissioner of Income-tax had urged before the High Court that it is not open to a Commissioner to review his order under Section 33 (now Section 33A with certain modifications) but the case was decided ultimately on another point. In -- 'Nanhe Mal Janki Nath v. Commissioner of Income-tax' (1940) 6 ITR 437 , Dalip Singh J., sitting with Sale J., observed at p. 442 :

' * * * it is obvious that having once revised the order qua one point, the same point could not be re-agitated again before the Commissioner.'

This matter, however, was not finally decided as the mandamus was refused on another point. In his well known Commentary on the Indian Income-tax Act, Shri A. C. Sampath Iyengar has stated the law to be as follows :

'Para. 961. The order of the Commissioner under this section is final and there is no further right of appeal or reference to the High Court. Equally once the Commissioner has exercised his power he becomes 'functus officio' and he cannot re-exercise his powers. Though the Commissioner is given power by this section to revise the order of his subordinate authorities, he cannot review his own decision except under Section 35, to correct a mistake.'

In my opinion, the legislature in its wisdom has given the Commissioner supervisory jurisdiction of modifying any order passed by his subordinates under the Act within certain limitations but has given no power to him to review or modify his own order and such a jurisdiction cannot be inferred on the basis of a supposed inherent right. I, therefore, hold that the Com-missioner or his successor has no power to review or modify the order already passed by him under Section 33A, Income-tax Act.

8. The next contention advanced by Mr. Sikri on behalf of the Commissioner of Income-tax was that the 1953 order was a nullity as the then Commissioner had no Jurisdiction to order stay of payment of tax beyond the decision of the assessee's appeal by the Appellate Assistant Commissioner. For this purpose he has relied on Section 45 of the Act. The argument is that under Section 45 the Income-tax Officer has the power not to treat the assessee as in default during the pendency of his appeal to the Commissioner when moved against his order but in the present case the Commissioner has proceeded to pass an order which is to remain in force till the decision of the case on merits by the Appellate Tribunal and to this extent the order in question is a nullity.

I regret I am unable to accept this contention. Under this section time is fixed by the Income-tax Officer or by the Appellate Assistant Commissioner or the Appellate Tribunal for payment of the assessed tax and if that is not done,then it is to be paid on or before the first day bf the second month following the date of service of notice. In case of appeal, however, to the Appellate Assistant Commissioner under B. 30, the income-tax Officer may not treat the assessee as in default during the pendency of his appeal.

This section does not provide for extension of time fixed by the statute. Under Section 46 (1) if a person is in default then he is liable to imposition of penalty. Section 46 (7), however, lays down that no proceedings for the recovery of any amount payable under this Act shall be commenced after the expiry of one year from the last day of the financial 'year hi which demand is made. Proviso (iii) to Section 46 (7) however reads :

'Provided that the period of one year herein referred to shall, where the date of payment of tax has been extended by an income-tax authority, be reckoned from the date up to which the time for payment had been extended.'

This provision, to my mind, suggests thatthe date of payment can be extended by an Income-tax Authority and this can be done' notonly by the Income-tax Officer but by any otherauthority seized of the matter and if that be sothen the Commissioner to whom they all aresubordinate can also extend time in exercise ofhis discretion under Section 33A. Thus it cannot besaid that the Commissioner had no power to extend time in the circumstances of the presentcase.

Moreover, even if he had no such power then even it would not make the order a nullity. It may be considered to be improper exercise of discretion or Illegal exercise of it but it cannot be held to be without jurisdiction and a nullity. In this connection it should not be forgotten that the Income-tax Officer accepted the 1953 order as binding on him and the tax-payer paid Rs. 10,000/- in cash and carried out the other conditions laid down in the order.

It appears to me that after two years, it Is not open to his successor to ignore the order and pass an order demanding immediate payment of tax. Further It will be noticed that he can have this power of demanding payment of tax immediately only if his predecessor had power to extend time, otherwise it will be open only to the Income-tax Officer to start proceedings of recovery under Section 46 (1) and that has not been done in the present case. I, therefore, reject this contention also.

9. Finally, it was urged that in any case the Commissioner in 1953 made a mistake which can be rectified under Section 35 of the Act by his successor. The suggestion is that the Commissioner made a mistake in passing an order extending date of payment to the date of decision by the Appellate Tribunal and that he had no jurisdiction to do. In my opinion even if this be taken to be correct view of law, the case is not governed by Section 35 of the Act.

It is well settled that mistake is not a mere forgetfulness but it is a slip made not by design but by mischance and it cannot be said that the order of 1953 was made not by design. Under this section the mistake must be apparent from the record but from this it cannot be inferred that the Income-tax Authorities or the Appellate Tribunal, got jurisdiction to review or revise their order or reconsider their decision on the facts or circumstances of the case.

The effect of the Issue of notice in the present case calling upon the petitioner to pay thetax by 15-9-1955 amounts to cancellation, of the previous order made by the then Commissioner permitting the tax-payer not to pay the tax till the decision of the appeal by the Appellate Tribunal and such an order cannot, in my opinion, be covered by Section 35. It really amounts to coming to a different conclusion two years later on the same set of facts. I, therefore, reject this argument also.

10. For the reasons given above, I am ofthe opinion that the applicant is entitled to relief on this application and I order that thenotice dated 25-7-1955 being in excess of Jurisdiction of the Commissioner be and is set aside.This petition is, therefore, accepted with costs.Counsel's fee is assessed at Rs. 100/- (onehundred).


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