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O.A.O.A.M. Muthiah Chettiar Vs. the Comr. of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 2282 of 1950
Judge
Reported inAIR1951Mad204; [1951]19ITR402(Mad); (1951)IMLJ417
ActsIncome Tax Act, 1922 - Sections 33A and 33A(2); Constitution of India - Article 226
AppellantO.A.O.A.M. Muthiah Chettiar
RespondentThe Comr. of Income-tax
Appellant AdvocateR. Kesava Iyengar, Adv.
Respondent AdvocateC.S. Rama Rao Sahib, Adv.
DispositionApplication allowed
Cases ReferredSecretary of State v. Gopisetti Narayanvsami
Excerpt:
.....of order on 18.02.1949 - application for revision rejected on ground that it was barred by time - whether date of limitation would be computed from date when order was signed by income-tax officer or date on which it was communicated to petitioner - period of limitation would be computed from date when such order communicated to party. - section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab..........cuddalore circle, south arcot district by his order dated 4-2-1948. he filed an appln, before the comr. of income-tax under section 33-a (2) of the act for revn. of this order dated 18-2-1949. the appln. was rejected in limine by the comr. on the ground that the revn. petn. was barred by time. according to the petnr., the order sought to be revised was received by him only on 24-2-1948. he has filed this appln. for the issue of a writ of mandamus to the gomr. of income-tax madras, directing him to entertain his appln. & to dispose of it in accordance with law, because according to him the appln. was within time as it was filed within one year from the date of the receipt of the assessment order by him.2. the only question on the merits which falls for decision is whether the one year.....
Judgment:

Rajamannar, C.J.

1. The appct. was assessed to income-tax by the Income-tax Officer, Cuddalore circle, South Arcot district by his order dated 4-2-1948. He filed an appln, before the Comr. of Income-tax under Section 33-A (2) of the Act for revn. of this order dated 18-2-1949. The appln. was rejected in limine by the Comr. on the ground that the revn. petn. was barred by time. According to the petnr., the order sought to be revised was received by him only on 24-2-1948. He has filed this appln. for the issue of a writ of mandamus to the Gomr. of Income-tax Madras, directing him to entertain his appln. & to dispose of it in accordance with law, because according to him the appln. was within time as it was filed within one year from the date of the receipt of the assessment order by him.

2. The only question on the merits which falls for decision is whether the one year has to be computed from the date when the order was signed by the Income-tax Officer, or the date when it was communicated to the petnr., or the date, if there be any, on which the petnr. had the opportunity of coming to know of the order. The learned advocate for the petnr. has relied on a catena of decisions of this Ct. of which it is sufficient to refer to two, namely, Secretary of State v. Gopisetti Narayanasami, 34 Mad. 151 : 8 I. C. 398 & Swaminathan v. Lakskmanan, 53 Mad. 491: A.I.R.1930 Mad. 490 which support his contention that the date of the order does not mean the date when the officer passed the order but date when such order was either communicated to the party or the date when it was pronounced or published in such a manner that the party must be deemed to have had notice of it or the date of such pronouncement or publication. The learned Judges in Secretary of State v. Gopisetti Narayanasami, 34 Mad. 151 : 8 I. C. 398were no doubt faced with the difficulty of straining the language which prima facie does not import a date different from the date when the order is actually passed. In Firm of Mohan Lal v. Gomr. of Income-tax B. & O., 9 Pat. 172 : A. I. R. 17 1930 Pat. 14 a Bench of the Patna H. C., without referring to the decisions of this Ct., arrived at a conclusion which undoubtedly is supported by the prima facie meaning of the language used in the statute. We see no reason to disregard, the consistent course of authority in this Ct. on this point.

3. Mr. Rama Rao Sahib, learned counsel for the Income-tax Dept., contended that the rule laid down in the two Madras decisions above cited is not an invariable & inflexible rule applying to the provisions relating to appeals & revng, made in every' enactment, & that each such provision in a particular enactment should be construed having regard to the general scheme of that enactment & taking into account the history of legislation in respect of the subject-matter of that enactment. He placed strong reliance on the fact that there had been amendments of the Income-tax Act & with regard to certain rights of appeal the amendments had specifically provided that time should be computed from the date of the receipt of the order sought to be appealed against, but there was no such amendment introduced in Section 33-A. It is not for us to consider why the language of Sections 33-A (2) was not altered. The only question that we have to decide is as to whether there is anything in the reasoning of the learned Judges in Secretary of State v. Gopisetti Narayanasami, 34 Mad. 151 : 8 I. C. 398 & Swaminatha v. Lakshmanan, 53 Mad. 491: A. I. R 1930 Mad. 490 which makes the application of the rule laid down by them dependent on the provisions of a particular statute. We think there is none. On the other hand, we consider that the rule laid down by the learned Judges in the above two decisions--& we are taking the same view--is based upon a salutary & just principle, namely that, if a person is given a right to resort to the remedy to get rid of an adverse order within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order & therefore, must be presumed to have had knowledge of the order. We do not agree with Mr. Rama Rao Sahib that the length of the period prescribed for filing an appeal or a revn. petn. or a suit has any bearing on the question. In Secretary of State v. Gopisetti Narayanasami, 34 Mad. 151 : 8 I. C. 398 the period was one year. In Swaminatha v. Lakshmanan, 53 Mad. 491: A.I.R. 1930 Mad. 490 the period was thirty days.

4. Mr. Rama Rao Sahib further contended that the provisions in Sub-section (2) of Section 33-A is really not a provision prescribing a time limit for the exercise of the right of the party aggrieved but it imposes a limit; to the exercise of revisional powers by the Comr. & therefore, time must be computed from the date when the order was actually passed. Plausible though this argument may be, so far as Sub-section (1) of Section 33-A is concerned, we are of opinion that it is not sound so far as the right given to the party aggrieved under Sub-section (2) is concerned. In a case falling under Sub-section (1) the Comr. acts of his own motion. There is no question of the aggrieved party invoking his jurisdiction. There can be no occasion to apply the rule enunciated in Secretary of State v. Gopisetti Narayanvsami, 34 Mad. 151 : (8 I. C. 398). It may be said that the Comr's. power to call for the record ceases with the lapse of one year from the date of the order by the subordinate authority. But in a case falling under Sub-section (2) the party aggrieved has got to take the steps of applying for revn. & he is allowed one year from the date of the order. The provision is, therefore, certainly in the nature of a time limit for the appln. for revn.

5. Mr. Rama Rao Sahib raised two objections to the maintainability of the appln. One objection was that a writ of mandamus cannot be issued in respect of any proceedings under the Income-tax Act, because the Act is a complete Code in itself providing for adequate remedies for aggrieved assesses. It is quite true that the Income-tax Act, does contain several provisions for appeals & revn. & reference. If the petnr. had sought, to obtain from this Gt. any relief which he would have been entitled to obtain under any of the provisions of the Income-tax Act, then certainly we would have no hesitation in holding that this Ct. would not exercise its power to issue prerogative writs to give such relief to an assessee. But this appln. is not made to obtain any of the reliefs which the assessee might obtain under the provisions of the Income-tax Act. This appln. is only to direct the Comr. to entertain an appln. provided by the Act itself on the ground that he has been improperly denied that right. The relief which he seeks at our hands is only a direction to the Comr. to entertain & dispose of the appln. according to law. This relief the petnr. cannot obtain under any of the revisions of the Income-tax Act. We, therefore, see no substance in this objection.

6. The other objection is based on the long delay in making the appln. The order of the Comr. rejecting the petnr's. appln. for revn. was made on 5-4-1949, while the appln. for the issue of a writ of certiorari was made about a year after that date. We have held that though there is no period of limitation as such prescribed for appln. for the issue of prerogative writs, long delay can be one of the grounds for refusing to grant an appln. for the issue of such writs. In this case, however, we think there are circumstances which should make us take a more lenient view. Though wrongly advised, the appet. appears to have sought some remedy from the Central Board of Revenue, of course, unsuccessfully. Having regard to this fact, we do not consider that the delay should prevent the party from obtaining the relief to which we have found he is entitled. We think that disallowance of the costs of the petn. would amply provide for the justice of the case.

7. As the Comr. of Income-tax has on a wrong construction of Section 33-A (2) of the Act refused to entertain the appln. made by the party for a revn. of the assessment made by the Income-tax Officer, a writ of mandamus will issue to him to take the appln. on file & dispose of it in accordance with law. As already observed, there will be no order as to costs.


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