TaxTMI 
TaxTMI 
1960 (2) TMI 72
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.... were served on the managing director of the company on September 2,1950, and the company was required to pay the taxes on or before October 10, 1950. 3. Against these assessments, the assessee filed appeals before the Appellate Assistant Commissioner. Pending them, it moved the Income Tax Officer to stay the collection of tax under section 45 of the Income Tax Act. 4. The Income Tax Officer refused to comply with this request after considering the attendant circumstances and informed the assessee that if the entire tax due from it was not paid on or before November 24, 1950, he, the Income Tax Officer, would be constrained to levy a heavy penalty under section 46(1) without further intimation. 5. The assessee next approached the Inspecting Assistant Commissioner for the same relief but unsuccessfully. 6. Lastly, it moved the Commissioner for permission to pay the tax in easy instalments. The Commissioner permitted the assessee to pay the entire tax in three instalments, the first instalment before January 13, 1951, the second before February 28,1951, and the last before March 31, 1951. 7. In spite of this, the assessee had not paid any part of the tax. The Income Tax Officer,....
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....to 896 of 1956. 11. The main attack against the levies was that there was no order passed by the Income Tax Officer before the notices under section 29 were served on the assessee and further there was no proper and valid service which would enable the Revenue to collect the levies. 12. Apart from refuting the allegations in this behalf, the writ petitions were opposed by the Department on the contentions that the petitioner (in the writ petitions) was guilty of laches in that there was a delay of more than four years in filing the petitions and that the jurisdiction exercised by the Commissioner was of an administrative character and as such was beyond the ambit of the High Courts power of supervision and control. 13. Umamaheswaram, J., who heard the petitions, overruled the opposition of the appellants in the view that no period of limitation was prescribed in article 226 of the Constitution, that even otherwise he was inclined to excuse the delay and secondly that the Commissioner acted judicially in dealing with a revision petition under section 33A of the Income Tax Act. He also thought that the notice of demand was unenforceable inasmuch as no order levying and specifying ....
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....ch place and India were severed by war conditions and that the house, to the door of which the affixture was made, was not inhabited by any one. In such a situation, it was found that it was futile to look for the assessee at the place of residence or to claim that he could not be found at that place and so service by affixture under such circumstances could never be due service within the meaning of Order V, rule 17, and Order V, rule 19, of the Civil Procedure Code, and that the further requirements of Order XXIX, rule 2, were not satisfied in that case, Such a situation does not obtain here. 16. Admittedly, affixture was made to the door of the business premises. It could not be pretended that neither the staff nor the other directors could be aware of this. We will presently show that someone or other acting on behalf of the managing director was carrying on correspondence with the Department for extension of time for payment of taxes and taking steps to see that the assessee was not treated as a defaulter. Be that as it may, there was nothing illegal, irregular or improper in the service effected, for there was sufficient compliance with the provisions of Order XXIX, rule 2, ....
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....in dealing with such a situation that their Lordships decided that the jurisdiction exercised by the concerned tribunal was of judicial character. Sinha, J. (as he then was), who spoke for the court, summarised the position thus : "Thus, on a review of the provisions of the Act and the rules framed thereunder, it cannot be said that the authorities mentioned in section 9 of the Act passed purely administrative orders which are beyond the ambit of the High Courts power of supervision and control." 20. Their Lordships also had in mind the circumstance that there was no indication that any distinction was made by section 9 between the grounds of interference on appeal and in revision. They had further taken into account the other factors which pointed to the conclusion that the tribunals were acting in a judicial capacity when they passed orders under section 9 and under the rules framed under that section. In this connection, we cannot overlook the significant observation of their Lordships, namely : "Whether or not an administrative body or authority functions as a purely administrative one or in a quasi-judicial capacity, must be determined in each case on an exam....
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....issioner, made within one year from the date of the order, (or within such further period, as the Commissioner may think fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period), call for the record of the proceeding in which such order was passed, and on receipt of the record may make such inquiry or cause such inquiry to be made, and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit :...." 22. We are not concerned with the proviso under this sub-section. 23. It is manifest that this section created only an administrative machinery by which the Commissioner is empowered to rectify any mistake committed by the departmental officials. It is not couched in a language which is calculated to create any right in an assessee or define the limits of such a right. 24. It is useful to compare this section with section 33B which confer power on the Commissioner to revise the Income Tax Officers orders. Here, the Commissioner could pass an order to the detriment of the assessee. But, before he could do so, he should follow the p....
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....ich corresponds to the present section 33A as, in their Lordships opinion that section is intended to provide the "administrative machinery by which a higher executive officer may review the acts of his subordinates and take the necessary action upon such review". 27. This was followed by Sinha, J., (as he then was), in Sitalpore Colliery Concern Ltd. v. Union of India . The learned judge pointed out that in section 33A, as distinguished from others, such as sections 30 and 33B, there was no express provision for hearing the assessees, because the Commissioner was performing administrative functions. 28. To a like effect is the judgment of our learned brother, Jaganmohan Reddy, J., in Edara Venkaiah v. Commissioner of Income Tax which has also called in aid for its support the ruling of the Privy Council in Commissioner of Income Tax v. Tribune Trust. 29. We feel that the pronouncement of their Lordships of the Privy Council could leave no room for doubt as to the nature and character of the duties performed by the Commissioner. That being the position, the order of the Commissioner is not subject to removal on certiorari. 30. The learned judge thought that even if it....