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M. Md. Sahagthullah Vs. 5th Income-tax Officer, City Circle Iii, Madras. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 2370 of 1966
Reported in[1972]83ITR775(Mad)
AppellantM. Md. Sahagthullah
Respondent5th Income-tax Officer, City Circle Iii, Madras.
Excerpt:
- .....officer did not pursue the directive of the tribunal by passing a fresh assessment on the firm as a registered firm and that this is the first step to reassess a partner in case it is found that the earlier assessment was wrong in material particulars, particularly in the matter of quantification of the tax.as regards the first contention, i am unable to agree. the petitioner set the law in motion and contended that his status at all material times was that of a registered partnership and he sought for an adjudication on this issue. it was only in 1961 that the high court, on a reference made to it, held that the contention of the firm, in which the petitioner was a partner, that it was to be treated as a registered firm had to be accepted and directed the incidental and.....
Judgment:

RAMAPRASADA RAO J. - The petitioner was a partner of the firm, Messrs. Ziaullah & Sons. Originally the firm was assessed to income-tax for the assessment year 1951-52 in the status of an unregistered firm and the share income of the petitioner was determined at a particular sum and the said amount so determined was subjected to tax as well. The firm took up the matter further to the higher hierarchy and questioned the order of assessment of the Income-tax Officer, which determined the status of to petitioner as an unregistered firm. It is not in dispute that the High Court ultimately in a tax revision came held that the firm was entitled to registration. Consequent upon this, the Appellate Tribunal passed orders directing that the firm be recognised as a registered-firm. The order of the High Court was dated 24th February, 1961, and in June, 1961, the Tribunal gave the above direction. Pursuant to the above, the Income-tax Officer, for the assessment year 1951-52, with which we are concerned, redetermined the share income of the petitioner as a partner of a registered-firm. This order was passed under section 35(5) of the Income-tax Act, 1922. It is as against this order that the present writ petition has been filed.

The contention of the learned counsel for the petitioner is that, as section 35(5) was inserted by the Income-tax (Amendment) Act of 1953, and came into effect from 1st April, 1952, the law which prevailed on the date ought to apply and that, in that sense, there being no corresponding provision in the earlier enactment such as section 35(5), the assessment is had and without jurisdiction.

The second contention, which is not found in the affidavit in support of the writ petition, is that the Income-tax Officer did not pursue the directive of the Tribunal by passing a fresh assessment on the firm as a registered firm and that this is the first step to reassess a partner in case it is found that the earlier assessment was wrong in material particulars, particularly in the matter of quantification of the tax.

As regards the first contention, I am unable to agree. The petitioner set the law in motion and contended that his status at all material times was that of a registered partnership and he sought for an adjudication on this issue. It was only in 1961 that the High Court, on a reference made to it, held that the contention of the firm, in which the petitioner was a partner, that it was to be treated as a registered firm had to be accepted and directed the incidental and consequential proceedings to be undertaken by the Tribunal and the officers concerned. It is on the basis of this that the Tribunal made the order on June 16, 1961, pursuant to which the department took up the matter once over so as to remedy the defect which had gone into the record. I shall advert to this aspect later. Regarding the second contention it is fundamental to this aspect later. Regarding the second contention it is fundamental to expect that all official acts are presumed to be done properly and legally and this presumption is a available under the Evidence Act. The contention of the learned counsel is that no fresh assessment order has been made on the registered firm, after the Tribunal gave the directive. Excepting this here statement at the bar, it is not even supported by any statement of his client in the affidavit in support of the writ petition. There was no occasion for the revenue for five years to meet such a contention which was not raised. On the principle that the office records and office procedure are presumed to have been kept and followed regularly and, as there is no material for me to canvass the correctness or otherwise of this contention raised for the first time before me, I am unable to entertain this part of the challenge against the impugned order.

The other contention has also to fail. In fact, it was the order of the High Court, followed up by the directive of the Tribunal, that was responsible for the reassessment and this reassessment was made at a time when section 35(5) was in the statute book, having been inserted in 1952. The petitioner cannot approbate and reprobate. If he desires to go back to a period prior to April 1, 1952, he could only claim that the status of the firm, in which he was a partner, should be recognised as an unregistered firm. The learned counsel, however, stated that the order of the High Court virtually set aside the original order of assessment tracting the firm as an unregistered firm. Therefore, it is ideal to contend that, at the time when the rectification proceedings were undertaken under section 35(5) of the Act, the law as it stood on the date when it was rectified cannot be invoked.

The two contentions fail and the writ petition is dismissed. There will be no order as to costs.

Petition dismissed.


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