By this writ petition filed under article 226 of the Constitution the petitioner seeks to quash exhibit P-6 evidencing the proceedings taken by the Income-tax Officer, Companies Circle, Ernakulam, in purported exercise of his powers under section 154(1)(a) of the Income-tax Act, 1961, amending an earlier order dated May 14, 1964, passed against the petitioner for the assessment year 1957-58 under section 23A of the Indian Income-tax Act, 1922, by rectifying a mistake stated to be apparent from the record.
The petitioner is a private limited company whose business consists mainly of undertaking and executing works contracts. It was also running a cashewnut factory till October, 1956. For the assessment year 1957-58 it was assessed to income-tax on a total income of Rs. 99,125 as per the assessment order evidenced by exhibit P-1 dated December 31, 1957. Proceedings were thereafter initiated against the petitioner by the Income-tax Officer, Ernakulam, under section 23A of the Indian Income-tax Act, 1922, on the ground that in respect of the assessment year 1957-58, it had been found out that the company had not declared the prescribed minimum dividend in accordance with the provisions of the aforesaid section. By the order, exhibit P-2, dated the 14th May, 1963, a super-tax of Rs. 8,413.62 was levied against the petitioner under section 23A. It is seen from exhibit P-2 that super-tax at 37% was levied on Rs. 9,226 which amount represented the difference between 60% of the distributable surplus and the sum actually distributed by the company by way of dividend.
The petitioner preferred an appeal to the Appellate Assistant Commissioner of Income-tax, Trivandrum, questioning the validity of the order (exhibit P-2) passed under section 23A on various grounds. The Appellate Assistant Commissioner by his order, exhibit P-3, dated the 27th November, 1964, rejected the petitioners contentions and confirmed the order passed by the Income-tax Officer under section 23A.
Thereafter, on November 30, 1965, the Income-tax Officer, Companies Circle, Ernakulam, issued a notice to the petitioner under section 154 of the Income-tax Act, 1961, informing him that the order passed against the company under section 23A for the assessment year 1957-58 on May 14, 1964, required to be amended as there was a mistake apparent from the record. The nature of the mistake proposed to be rectified was disclosed in the notice as follows :
'A sum of Rs. 3,413.62 has been levied under section 23A as additional super-tax. This has been arrived at by levying the additional super-tax of 37% on the difference between 60% of the distributable income and actual dividend declared. This is not correct. The additional super-tax under section 23A is leviable on the full distributable income less actual dividend declared.'
The petitioner was called upon to appear before the officer in person or by authorised representative on December 6, 1965, in case he wished to be heard in the matter, or in the alternative to submit his written representation if he did not desire to have a personal hearing. The petitioner accordingly put in written objections evidenced by exhibit P-5 and also availed himself of the opportunity for personal bearing. He objected to the jurisdiction of the Income-tax Officer to initiate proceedings under section 154 for rectifying the alleged mistake and also contended that on the merits there was no case for enhancing the amount of super-tax since, according to the petitioner, the imposition of any super-tax under section 23A was not warranted in law on the facts and circumstances of the case and even the original order passed under section 23A was, therefore, illegal.
The Income-tax Officer by his order dated January 27, 1966, rejected the objections put forward by the petitioner and rectified the order dated May 14, 1964, passed under section 23A by enhancing the amount of super-tax from Rs. 3,413.62 to Rs. 10,499.12. It is against the aforesaid proceedings of the Income-tax Officer evidenced by exhibit P-6 that the petitioner has come forward with this writ petition.
Although various contentions have been urged before me by the learned counsel for the petitioner it is unnecessary for me to deal with all of them in view of my conclusion that the petitioner is entitled to succeed on his first contention that the Income-tax Officer had no jurisdiction to take proceedings for rectification under section 154 of the Income-tax Act, 1961, inasmuch as the order under section 23A passed by his predecessor on may 14, 1964, had got itself merged in the appellate order, exhibit P-3, passed on appeal by the Appellate Assistant Commissioner of Income-tax on November 27, 1964.
The relevant portion of section 154 is in the following terms :
'(1) With a view to rectifying any mistake apparent from the record -
(a) the Income-tax Officer may amend any order of assessment or of refund or any other order passed by him;
(b) the Appellate Assistant Commissioner may amend any order passed by him in appeal under section 250;
(c) The Commissioner may amend any order passed by him in revision under section 263 or section 264.
(2) Subject to the other provisions of this section, the authority concerned -
(a) may make an amendment under sub-section (1) of its own motion, and
(b) shall make such amendment for rectifying any such mistake which has been brought to its notice by the assessee, and where the authority concerned is the Appellate Assistant Commissioner, by the Income-tax Officer also.
(3) An amendment, which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this section unless the authority concerned has given notice to the assessee of its intention so to do and has allowed the assessee a reasonable opportunity of being heard...
(7) Save as otherwise provided in section 155 or sub-section (4) of section 186 no amendment under this section shall be made after the expiry of four years from the date of the order sought to be amended.'
It is clear from clause (a) of sub-section (1) that the Income-tax Officer is empowered by that provision to amend only an order passed by him and that the power to amend an order passed in appeal by the Assistant Commissioner is expressly vested by clause (b) only in the appellate authority. Provision is contained in sub-section (2)(b) for the Income-tax Officer on noticing any mistake apparent in an appellate order to bring the matter to the notice of the appellate authority in which event that authority is enjoined to make the necessary amendment for rectifying the mistake.
In my opinion, the contention of the counsel for the petitioner that, after the order passed by the Income-tax Officer under section 23A was taken up in appeal to the appellate authority and had been confirmed by that authority, it is only the appellate authoritys order that survived, the order passed by the assessing authority having got itself merged in the appellate order, is well-founded and has to be accepted. As pointed out by a Division Bench of the Madras High Court in A. Haji Abdul Shukoor and Co. v. State of Madras :
'Whether it is a proceeding in a civil court or a proceeding before a quasi-judicial tribunal, it is settled law, that when the order of the lower court or the subordinate authority is confirmed by the appellate court or appellate authority, the original order or decree is superseded and the only court that can amend thereafter is the appellate court. It is sufficient to refer to the Full Bench decision in Pichuvayyangar v. Seshayyangar in which it was held that the jurisdiction of the court of first instance to amend the decree was ousted by the confirmation of the decree on appeal.'
In Sundaram & Co. v. First Additional Income-tax Officer, the same High Court held that where an order of assessment made by the Income-tax Officer had been confirmed with some modification on an appeal filed by the assessee, the Income-tax Officer had no jurisdiction to initiate proceedings for rectification in respect thereof under section 36 of the Indian Income-tax Act, 1922 (corresponding to section 154 of the present Act), because, after the appellate decision, the only order that was in force was the order of the Appellate Assistant Commissioner and the original order of assessment was no longer subsisting.
The same view has been taken by Varadaraja Iyengar J. in Abdul Rahiman Sait v. Income-tax Officer, Alleppey, where the learned judge, dealing with the scope of section 48 of the Travancore Income-tax Act, 23 of 1121 (corresponding to section 38 of the Indian Income-tax Act, 1922), has observed as follows :
'The section, it is clear, empowers the various authorities, the Commissioner, Appellate Assistant Commissioner, Income-tax Officer and the Appellate Tribunal, each to rectify its own mistakes and not that of any other or others. The corresponding rule which obtains under section 152 of the Code of Civil Procedure runs as follows :
Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties.
And it has been uniformly held that wherever there is a confirmation, reversal or variation of the decree of the court of first instance in appeal from the decree, it is the appellate court alone that can amend the decree : see Mullas Civil Procedure Code, 12th edition, page 462. There is no reason why the same principle should not apply as among the hierarchy of authorities under the Income-tax Act. The Income-tax Officers original order adding by estimate a sum of Rs. 30,000 to the book profits of the Alleppey branch was, without doubt, superseded by the order of the Appellate Assistant Commissioner confirming it in appeal and that appellate order itself got merged in the final order of the Appellate Tribunal varying it and fixing Rs. 12,000 for the purpose of the addition. The only authority which could amend the order of the Tribunal on ground of apparent error must, on the above reasoning, be the Tribunal and exhibit F order of the Income-tax Officer must in consequence go.'
The matter is placed beyond all doubt by all the following observations of the Supreme Court in Commissioner of Income-tax v. Amritlal Bhogilal & Co. :
'There can be no doubt that, if an appeal is provided against an order passed by a Tribunal, the decision f the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the Tribunal, it is obvious that it is the appellate decision that is effective and an be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.....'
Counsel for the revenue sought to place reliance on certain observations of the Madhya Pradesh High Court in Central India Insurance Co. Ltd. v. Income-tax Officer, A-Ward, Indore, where it was held that the fact that there was an appeal to the Appellate Tribunal could not take away the Appellate Assistant Commissioners jurisdiction to effect a rectification under section 35 of the Indian Income-tax Act, 1922, in respect of a matter which could not be regarded as having been the subject-matter of the appeal to the Tribunal and had not been actually considered in that appeal. This decision is clearly distinguishable on fats because it is seen that the reasoning of the learned judge is rested mainly on the ground of the restricted nature of the jurisdiction and powers of the Income-tax Appellate Tribunal as conferred by section 33(4) of the Indian Income-tax Act, 1922. The appellate jurisdiction conferred on the Appellate Assistant Commissioner by section 31 of the Indian Income-tax Act, 1922, is much wider than that conferred on the Tribunal under section 33 and is not subject to the restrictions referred to by the learned judges; or (nor ?) can it be said in the present case that the quantum of the super-tax and the correctness of its computation were not the subject-matter of the appeal before the Tribunal. In fact, it is seen from a reference to exhibit P-3 that the principal contention that was considered by the Appellate Assistant Commissioner related to the correctness of the computation of the distributable surplus, and after rejecting the appellants contention the appellate authority came to the conclusion that the actual amount of shortfall was Rs. 9,226 and expressly confirmed the order under section 23A. In these circumstances, he aforesaid ruling of the Madhya Pradesh High Court, even if it is assumed to have been correctly decided, cannot apply to the facts of the present case.
I have, therefore, no hesitation to hold that after the appellate decision evidenced by exhibit P-3, the order, exhibit P-2, ceased to have a separate existence, it having got itself marged in the appellate order, and that, therefore, the Income-tax Officer had no jurisdiction to initiate proceedings under section 154 for rectification of the order evidenced by exhibit P-2. The proceedings evidenced by exhibit P-6 are, therefore, quashed.
It will no doubt be open to the Appellate Assistant Commissioner, if he deems fit, to initiate fresh action under section 154(1)(b), the petitioner being at liberty to raise all its objections before such authority in the event of fresh proceedings being initiated by the appellate authority. I make it clear that I express no opinion on the other contentions urged by the petitioner relating to the merits of the order, exhibit P-6.
The original petition is allowed as above and exhibit P-6 is quashed. There will be no direction regarding costs.