TaxTMI 
TaxTMI 
TaxTMI 
1972 (12) TMI 10
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.... dated August 22, 1960, made under section 66(5) of the Act was not in conformity with the order of this court in R.C. No. 75/57 and that, therefore, the Tribunal should be directed to re-hear the matter. In fact, the Income-tax Officer, Karaikudi, by a letter dated November 22, 1963, drew the attention of the Tribunal that a mistake has occurred in the order of the Tribunal dated August 22, 1960, in giving effect to the order of the High Court and that the original appeal filed by the department before the Tribunal in I.T.A. No. 5963/53-54 (R.A. No. 714/54-55) should be reheard as per the order of the High Court. By an order, dated February 10, 1964, the Tribunal dismissed this request treating it as an application made by the department under section 35 in the view that the decision of the Tribunal under section 66(5) of the Act has been given rightly or wrongly restoring the Appellate Assistant Commissioner's order and that order was not liable to be reviewed, the only remedy of the aggrieved party being to ask for a fresh reference to the High Court on the order made under section 66(5) of the Act. It is only, thereafter, this writ petition has been filed by the Commissioner of....
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.... Penang was closed and the assets and the liabilities of that branch were taken over by the joint family firm, at Penang. Of the credits M.R.M..S. Hundial firm had at the time when it was taken over was one for Rs. 3,19,162 against the head office at Karaikudi. On February 5, 1948, the joint family firm, wrote off the debit balance which stood against M.R.M.S. Penang, though there was an asset for nearly that amount in the head office of M.R.M.S. shop of Karaikudi, which represented the remittance made to the assessee. The department, therefore, treated the writing off as a remittance in India on February 5, 1948, and assessed the same as already stated. The assessee filed an appeal against this order of the Income-tax Officer to the Appellate Assistant Commissioner wherein he contended that the constructive remittance of foreign profits should be held to have been made only during the accounting year corresponding to the assessment year 1942-43 when the monies were actually remitted and when the joint family took over the Hundial firm and not when they were written off in the accounts of the family business at Penang. This contention the Appellate Assistant Commissioner accepted a....
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....the Tribunal's order. On September 23, 1955, the Income-tax Officer also issued a notice under section 34 to the assessee. Aggrieved by this notice instituting proceedings under section 34 the assessee filed W.P. No. 950/55 in this court raising various objections. This writ petition was dismissed on March 21, 1957, with the observation that the assessment was only a protective assessment and no question of collection would arise. The assessee having failed to get a reference under section 66(1), filed C.M.P. No. 9330/55 and got the following two questions referred to the High Court: " (i) Whether, on the facts and in the circumstances of this case, the Appellate Tribunal having dismissed the appeal by the department, had jurisdiction to set aside the assessment on the petitioner as an individual and direct a fresh assessment ? and (ii) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in deciding the appeal on the basis of an irregularity in the assessment while the said irregularity was not specifically taken in the grounds of appeal ? " This court held that it was open to the Tribunal to give a finding that it was the Hindu undivide....
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....ding that the joint family received the foreign remittance and remand the proceedings for fresh assessment." After this order the Tribunal made the following order under section 66(5) : "In compliance with the decision of the High Court of judicature at Madras, in Case Referred No. 75 of 1957, dated 24th November, 1959 (3rd Agrayana, 1881), we hereby set aside our order in the above case, thereby restoring the Appellate Assistant Commissioner's order. The Income-tax Officer shall modify the assessment accordingly." The controversy in this writ petition relates to the correctness of this order. Though we are not sitting in judgment over the decision of this court in R. C. No. 75/57 (Periannan Chettiar v. Commissioner of Income-tax), we are called upon to decide as to what exactly was decided by the Tribunal and the High Court in order to test the correctness of the order made under section 66(5). We, accordingly, proceed to put on our own glass and interpret the decisions of the Tribunal and the High Court. The order of the Tribunal held: (1) the income of the individual and the joint family could not have been clubbed and they should have been assessed separately. (2) The cons....
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.... ground that the remittances could not at all be included in the assessment of the individual and at the same time give direction to the Income-tax Officer to include the same in the assessment of the joint family and make a fresh assessment starting from the stage of returns. The assessee questioned the direction given by the Tribunal in the reference to the High Court, but the department did not choose to question the dismissal of the appeal by asking for any reference under section 66. It might be that the department at that time thought that they could assess the remittance in the joint family assessment and that is why notice under section 34 was issued on March 29, 1955, after disposal of the appeal by the Tribunal. But, we need not have any such assumption. Suffice it for us to say, that since the department allowed the order of dismissal of the appeal to stand, they cannot now question the same. Since the Tribunal had jurisdiction, as held by this court, to decide the question whether the remittance could be assessed at all in the assessment of the individual and it gave a finding that it could not be assessed, the dismissal of the appeal by the Tribunal appears to be prope....