D.K. Sen, J.
1. Shib Banerji Properties & Construction (P.)Ltd., Calcutta, the assessee, was assessed to income-tax for the year 1961-62, the relevant accounting year ending on June 30, 1960. The assessee being aggrieved preferred an appeal to the Appellate Assistant Commissioner with partial success and the total income of the assessee as computed was reduced partly. A further appeal was preferred by the assessee to the Tribunal.
2. While the appeal before the Tribunal was pending, the Income-tax Officer passed an order under Section 23A of the Indian Income-tax Act, 1922 ('the Act'), on May 19, 1965, by which a further demand of additional super-tax was raised on the assessee on the ground that the assessee had failed to distribute the statutory percentage of dividends.
3. On an appeal by the assessee, the Appellate Assistant Commissioner vacated the said order passed under Section 23A. The Revenue went up on appeal before the Tribunal against the order of the Appellate Assistant Commissioner.
4. The appeal of the assessee before the Tribunal in respect of the assessment was disposed of by an order dated April 26, 1968, whereby the taxable income of the assessee was further reduced. At this stage, the Income-tax Officer reopened the assessment of the assessee for the year involved.
5. On February 27, 1970, the appeal of the Revenue from the order of the Appellate Assistant Commissioner setting aside the order under Section 23A was disposed of. The Tribunal restored the order under Section 23A with a direction that additional super-tax be computed by giving effect to the assessment as finally determined by the Tribunal.
6. In March, 1972, the Income-tax Officer passed another order under Section 23A whereby he raised the demand of additional super-tax on the basis of the subsequent orders of the Tribunal as also that of the Appellate Assistant Commissioner. The assessee preferred an appeal against the second order passed under Section 23A. The Appellate Assistant Commissioner upheld the said order but on a further appeal by the assessee, the Tribunal held in favour of the assessee.
7. On application by the Revenue under Section 256(1) of the Income-tax Act, 1961, the Tribunal has referred the following question, as a question of law arising out of its order, for the opinion of this court:
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in cancelling the second order dated May 25, 1972, of the Income-tax Officer made under Section 23A of the Indian Income-tax Act, 1922?'
8. The point raised in the question, it appears, is concluded so far as this court is concerned by its decision in CIT v. Luxmi Ideal Investment & Finance Corporation (P.) Ltd. : 113ITR238(Cal) , where it was observed as follows (p. 239) :
'But the question is not whether there is any limitation on the power of the Income-tax Officer or his successor but whether they have the power to act more than once under this section. This section is a penal provision and it does not. even indicate that they have such powers. Further, Section 23A says that the Income-tax Officer shall make ' an order ' and not that he shall make as many orders as he likes. It is elementary that the Income-tax Officer is bound to drop the proceedings where no super-tax is payable by the assessee and in this case it has been done by the Income-tax Officer.
Further, the Indian Income-tax Act, 1922, expressly provides for initiation of subsequent proceedings in certain matters, to wit Section 34 of the Act. There is no such provision in Section 23A of the Act and, therefore, if an order passed by the Income-tax Officer under this section is prejudicial to the interests of the Revenue, it can be rectified only by the Commissioner of Income-tax under Section 33B of the Act and, hence, it must be held that no such power is intended to be given by the Legislature to the Income-tax Officer or his successor under Section 23A of the Act. '
9. Following the said decision, we answer the question referred in the affirmative and in favour of the assessee. There will be no order as to costs.
G.N. Ray, J.
10. I agree.