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Thoppil Kutti Eroor Vs. Commissioner of Income-tax, Mysore, Travancore-cochIn and Coorg, Bangalore. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberIncome-tax Referred Case No. 20 of 1955 and C.M.P No. 707 of 1955
Reported in[1958]34ITR850(Ker)
AppellantThoppil Kutti Eroor
RespondentCommissioner of Income-tax, Mysore, Travancore-cochIn and Coorg, Bangalore.
Excerpt:
.....under sub-section (4) of section 27 or sub-section (2) of section 28, or (c) has concealed the particulars of his income, or deliberately furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty, in the case referred to in clause (a) in addition to the amount of the income-tax and super-tax, if any, payable by him, a sum not exceeding one and a half times that amount, and in the cases referred to in clauses (b) and (c) in addition to any tax payable by him, a sum not exceeding one and half times the amount of the income-tax, and super-tax, if a a case like that can be considered only as one coming under clause (a), and not as one coming under clause (c) of section 38(1) of the act. 4. it is impossible to say that when a person has..........of income-tax, mysore, travancore-cochin and coorg, bangalore, under section 109(2) of the cochin income-tax act (vi of 1117). the questions referred are :'(1) whether in the circumstances of the case the income-tax officer was correct in making the assessments for the years 1120 and 1121 m.e. under the 8 year rule of limitation under section 44 of the cochin income-tax act (2) whether in the circumstances of the case the commissioners order dated december 15, 1954, canceling the appellate assistant commissioners order is barred by limitation ?'2. section 44 or the cochin income-tax act (vi of 1117), deals with income escaping assessment. sub-section (2) of that section (omitting the proviso) reads as follows :'no order of assessment under section 28 or of assessment of.....
Judgment:

This is a reference by the Commissioner of Income-tax, Mysore, Travancore-Cochin and Coorg, Bangalore, under section 109(2) of the Cochin Income-tax Act (VI of 1117). The questions referred are :

'(1) Whether in the circumstances of the case the Income-tax Officer was correct in making the assessments for the years 1120 and 1121 M.E. under the 8 year rule of limitation under section 44 of the Cochin Income-tax Act

(2) Whether in the circumstances of the case the Commissioners order dated December 15, 1954, canceling the Appellate Assistant Commissioners order is barred by limitation ?'

2. Section 44 or the Cochin Income-tax Act (VI of 1117), deals with income escaping assessment. Sub-section (2) of that section (omitting the proviso) reads as follows :

'No order of assessment under section 28 or of assessment of re-assessment under sub-section (1) of this section shall be made after the expiry, in any case to which clause (c) of sub-section (1) of section 38 applies, of the year in which the income, profits or gains were first assessable.'

The assessment years with which we are concerned in this case are the Malayalam years 1120 (accounting period 1119 M.E.) and 1121 (accounting period 1120 M.E.) and it is common ground that if section 38(1)(c) is not attracted and the period of eight years is unavailable, the two orders impugned (annexure B and C dated 27-7-1953/13-12-1128) are out of time and cannot be sustained.

3. Section 38(1) of the Cochin Income-tax Act (VI of 1117) omitting the proviso is in the following terms :

'If the Income-tax Officer, the Deputy Commissioner of the Commissioner, in the course of any proceedings under this Act, is satisfied that any person...

(a) has without reasonable cause failed to furnish the return of his total income which he was required to furnish by notice given under sub-section (1) or sub-section (2) of section 27 or section 44 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by such notice, or

(b) has without reasonable cause failed to comply with a notice under sub-section (4) of section 27 or sub-section (2) of section 28, or

(c) has concealed the particulars of his income, or deliberately furnished inaccurate particulars of such income, he may direct that such person shall pay by way of penalty, in the case referred to in clause (a) in addition to the amount of the income-tax and super-tax, if any, payable by him, a sum not exceeding one and a half times that amount, and in the cases referred to in clauses (b) and (c) in addition to any tax payable by him, a sum not exceeding one and half times the amount of the income-tax, and super-tax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income.'

A reading of section 44(2) and section 38(1) of the Cochin Income-tax Act (VI of 1117), makes it clear that the longer period of eight years is available only in cases where a person 'has concealed the particulars of his income or deliberately furnished inaccurate particulars of such income'. In this case the assessee had not filed any return for either of the two years as required by the general notice issued under section 27(1) of the Act. A case like that can be considered only as one coming under clause (a), and not as one coming under clause (c) of section 38(1) of the Act.

4. It is impossible to say that when a person has failed to furnish any return at all what he has done is to conceal the particulars of his income or to deliberately furnish inaccurate particulars of such income within the meaning of clause (c) of section 38(1) of the act. We entertain no doubt that the offence in such a case should be considered as one coming under clause (a) and not under clause (c) of sub-section (1) of ssection 38.

5. It follows that a period of eight years is not available to the Department in this case and we answer the first question accordingly.

6. In the light of our conclusion on the first of the two questions referred to us, it is agreed that the second does not arise for consideration and we are not as a result called upon to answer the same.

7. A copy of this judgment under the seal of this court and the signature of the Registrar will be sent to the Commissioner of Income-tax as directed by sub-section (6) of section 109 of the Cochin Income-tax Act (VI of 1117).

8. We make no order as to costs.

Reference answered accordingly.


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