TaxTMI 
TaxTMI 
1967 (5) TMI 2
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of revenue for the following reasons amongst others. 2. Enquiries made have revealed that no business as alleged was carried on from the address declared in the return. Also the said Income-tax Officer was not justified in accepting the initial capital, the acquisition and sale of jewellery, the income from business, gift made by you, etc., without any enquiry or evidence whatsoever. 3. I, therefore, propose to pass such orders thereon as the circumstances of the cases justify after giving you an opportunity of being heard under the powers vested in me under section 33B of the Income-tax Act, 1922. The cases will be heard at 11 a.m. on 1st February, 1963, at my above office when you are requested to produce the necessary evidence in support of your contentions. Objections in writing accompanied by necessary evidence, if any, received on or before the appointment for personal hearing will also be duly considered. Please note that no adjournment of the hearing will be granted." The assessee, on February 1, 1963, protested to the Commissioner against the issue of the notice and stated that the said notice was absolutely bad in law, illegal and void. On the same date the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hereinafter referred to as the repealed Act),----- (a) Where a return of income has been filed before the commencement of this Act by any person for any assessment year, proceedings for the assessment of that person for that year may be taken and continued as if this Act had not been passed; (b) Where a return of income is filed after the commencement of this Act otherwise than in pursuance of a notice under section 34 of the repealed Act by any person for the assessment year ending on the 31st day of March, 1962, or any earlier year, the assessment of that person for that year shall be made in accordance with the procedure specified in this Act; (c) any proceeding pending on the commencement of this Act before any income-tax authority, the Appellate Tribunal or any court, by way of appeal, reference or revision, shall be continued and disposed of as if this Act had not been passed; (d) where in respect of any assessment year after the year ending on the 31st day of March, 1940,---- (i) a notice under section 34 of the repealed Act had been issued before the commencement of this Act, the proceedings in pursuance of such notice may be continued and disposed of as if t....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., instruction, notification, order or rule issued under any provision of the repealed Act shall, so far as it is not inconsistent with the corresponding provision of this Act, be deemed to have been entered into, made, granted, given or issued under the corresponding provision aforesaid and shall continue in force accordingly; (l) any notification issued under sub-section (1) of section 60 of the repealed Act and in force immediately before the commencement of this Act shall, to the extent to which provision has not been made under this Act, continue in force until rescinded by the Central Government; (m) where the period prescribed for any application, appeal, reference or revision under the repealed Act had expired on or before the commencement of this Act, nothing in this Act shall be construed as enabling any such application, appeal, reference or revision to be made under this Act by reason only of the fact that a longer period therefor is prescribed or provision is made for extension of time in suitable cases by the appropriate authority." Section 298 of the 1961 Act: "Power to remove difficulties.----(1) If any difficulty arises in giving effect to the provisions of....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., had not been passed. (2) Any such proceeding instituted under the repealing Act after the 31st day of March, 1962, and before the date of this Order shall be deemed to have been instituted under the repealed Act and shall be disposed of as if the repealing Act had not been passed. Provided that if any such proceeding has been disposed of before the date of this Order under any provision of the repealing Act, it shall be deemed to have been disposed of under the corresponding provision of the repealed Act and any appeal, reference or revision in respect of the proceeding so disposed of shall be instituted and disposed of as if the repealing Act had not been passed. " The learned judge held that the expression " proceedings for the assessment " in section 297(2)(a) of the 1961 Act had a comprehensive meaning and included proceedings under section 33A or section 33B of the 1922 Act. He also held that clauses (c) and (d) of section 297(2) of the 1961 Act must be deemed to have been enacted by way of abundant caution. In view of his findings, he did not consider it necessary to determine whether section 6 of the General Clauses Act saved the power under section 33B of the 192....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssment " has not been used in its wide sense because Parliament has provided for the imposition of penalty in clauses (f) and (g), which ordinarily falls within the wide sense of "assessment". It has also provided for what is to happen to pending proceedings in clause (c). He urges that the High Court erred in holding that these sub-clauses had been added by way of abundant caution. The learned counsel for the respondent, Mr. S. T. Desai, contends that section 297(2)(a) is comprehensive in its scope and amplitude to include any proceedings under section 33B of the 1922 Act. He further says that section 6 of the General Clauses Act will apply to the extent there is no contrary intention in section 297(2) of the 1961 Act. He finally contends that even if there is any doubt regarding the scope of clause (a) it is removed by the Removal of Difficulties Order issued under section 298. It seems to us that the High Court is right in holding that section 297(2)(a) of the 1961 Act includes within its scope a proceeding under section 33B of the 1922 Act. There is no doubt that the word " assessment " does have, subject to the context, a very wide meaning. The Privy Council in Commis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me deemed to have been distributed as dividend, section 23B deals with assessment in case of departure from taxable territories, section 24B deals with collection of tax out of the estate of deceased persons, section 25 deals with assessment in case of discontinued business, section 25A with assessment after partition of Hindu undivided families and sections 29, 31, 33 and 35 deal with the issue of demand notices and the filing of appeals and for reviewing assessment and section 34 deals with assessment of incomes which have escaped assessment. The expression 'assessment' used in these sections is not used merely in the sense of computation of income and there is in our judgment no ground for holding that when by section 44, it is declared that the partners or members of the association shall be jointly and severally liable to assessment, it is only intended to declare the liability to computation of income under section 23 and not to the application of the procedure for declaration and imposition of tax liability and the machinery for enforcement thereof. " In Commissioner of Income-tax v. Bhikaji Dadabhai and Co. this court quoted with approval the observations regardi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and for any purposes connected with such levy, assessment or collection :......" observed : " It is urged by Mr. Palkhivalla for the petitioners that the words 'levy, assessment and collection' do not include a right of appeal against the assessment order and the Baroda law did not continue to apply to any rights of appeal that the petitioners might have had in respect of the order of assessment. In the first instance, this argument appears to me to be a perfectly futile argument, because, if I were induced to take such a view of the section, it would leave the petitioners without any right of appeal at all. If the Baroda Act ceases to apply and obviously the Indian Act does not apply to the assessments of accounting years prior to the accounting year 1948-49, there is no right of appeal; and the petitioners could not have gone to the Tribunal at all, for there is no other section or sections which confer any right of appeal under the Indian Income-tax Act, in respect of assessments made under the Baroda Act. But, apart from this, in my opinion, the words 'for the purposes of levy, assessment and collection of income-tax include all procedure for the levy, assessm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is hardly believable in this context that Parliament did not think of appeals and revisions in respect of assessment orders already made or which it had authorised to be made under clause (a) of section 297(2). The learned counsel for the appellant submits that Parliament had section 6 of the General Clauses Act in view, and therefore no express provision was made dealing with appeals and revisions, etc. In our view, section 6 of the General Clauses Act would not apply because section 297(2) evidences an intention to the contrary. In Union of India v. Madan Gopal Kabra, while interpreting section 13 of the Finance Act, 1950, already extracted above, this court observed at page 68 : " Nor can section 6 of the General Clauses Act, 1897, serve to keep alive the liability to pay tax on the income of the year 1949-50 assuming it to have accrued under the repealed State law, 'for a different intention' clearly appears in sections 2 and 13 of the Finance Act read together as indicated above. " It is true that whether a different intention appears or not, must depend on the language and content of section 297(2). It seems to us, however, that by providing for so many matte....