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Ramanlal Kamdar Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberTax Case No. 316 of 1972 (Reference No. 103 of 1972)
Judge
Reported in[1977]108ITR73(Mad)
ActsIncome Tax Act, 1961 - Sections 256(1)
AppellantRamanlal Kamdar
RespondentCommissioner of Income-tax
Appellant AdvocateS. Swaminathan and ;K. Ramgopal, Advs.
Respondent AdvocateJ. Jayaraman and ;Nalini Chidambaram, Advs.
Excerpt:
- ismail j. 1. the income-tax appellate tribunal, bangalore bench, under section 256(1) of the income-tax act, 1961, has referred the following questions for the opinion of this court: ' (1) whether, on the facts and in the circumstances of the case, it has been rightly held that the proceedings under section 154 were rightly invoked (2) if the answer to the first question is ' yes ', whether it could be held that, in the facts and circumstances of the case, the levy of interest under the proviso (iii)(b) to section 139(1) was valid ' 2. we are of the opinion that the reference itself was incompetent and hence we do not propose to answer the questions referred to this court. we shall now indicate the reasons for this opinion. 3. in the original assessment for the assessment year 1962-63 a.....
Judgment:

Ismail J.

1. The Income-tax Appellate Tribunal, Bangalore Bench, under Section 256(1) of the Income-tax Act, 1961, has referred the following questions for the opinion of this court:

' (1) Whether, on the facts and in the circumstances of the case, it has been rightly held that the proceedings under Section 154 were rightly invoked

(2) If the answer to the first question is ' yes ', whether it could be held that, in the facts and circumstances of the case, the levy of interest under the proviso (iii)(b) to Section 139(1) was valid '

2. We are of the opinion that the reference itself was incompetent and hence we do not propose to answer the questions referred to this court. We shall now indicate the reasons for this opinion.

3. In the original assessment for the assessment year 1962-63 a mistake had crept in while working out interest under Section 139(1)(iii). Thereafter, the Income-tax Officer issued a notice to the assessee, proposing to rectify the mistake under Section 154 and calling upon the objections of the assessee. The notice expressly referred to the tax effect which would result as a consequence of the rectification. The mistake was that instead of treating the assessee as an unregistered firm for the purpose of calculating the interest the Income-tax Officer had treated the assessee as a registered firm. On October 27, 1967, a partner of the assessee appeared before the Income tax Officer pursuant to the notice issued by him and stated that the assessee had no objection to the revision proposed by the Income-tax Officer. Thereafter, the Income-tax Officer passed an order on February 17, 1963, rectifying the mistake under Section 154 of the Act. Notwithstanding the fast that a partner of the assessee had appeared before the Income-tax Officer and stated that the assessee had no objection to the proposed revision, the assessee preferred an appeal to the Appellate Assistant Commissioner of Income-tax. That officer dismissed the appeal, upholding the order of the Income-tax Officer. The assessee preferred a further appealto the Income-tax Appellate Tribunal, Bangalore Bench. The Tribunal also dismissed the appeal. It is, thereafter, at the instarice of the assessee, the Tribunal has referred the questions extracted already.

4. We are of the opinion that the appeals to the Appellate Assistant Commissioner and to the Tribunal, by the assessee, were incompetent. We havealready referred to the fact that one of the partners of the assessee, viz.,Shri Chandulal Kamdar, appeared before the Income-tax Officer on October27, 1967, and stated that the assessee had no objection to The proposedrevision. Once the assessee had stated that it had no objection to the proposed revision and the Income-tax Officer had also revised the originalassessment as proposed by him, the assessee could not be said to have beenaggrieved by the order of the Income-tax Officer. Only if the assessee wasaggrieved by the order of the Income-tax Officer, he had the right to file anappeal before the Appellate Assistant Commissioner and once the assesseecould not have had any grievance in, view of the statement made by thepartner, the appeal to the Appellate Assistant Commissioner was incompetent and equally the appeal to the tribunal was incompetent. If so, thereference to this court of the two questions said to arise out of the orderof the Tribunal is also incompetent. We may point out in this context thefact that one of the partners of the assessee appeared before the Income-taxOfficer and stated that the assessee had no objection to the proposedrevision has not been disputed at any stage and even before us, andevery one of the authorities, viz., the Income-tax Officer, the AppellateAssistant Commissioner and the Tribunal has referred to this fact in thecourse of their orders.

5. Under these circumstances, we return the reference without answering the questions extracted already. No order as to costs.


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