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Civil Miscellaneous Writ No. 3251 of 1968 with Civil Miscellaneous Writs Nos. 3252, 3253 and 3254 of 1968, decided on 11th March 1969.
Rectification‑Order under section 23‑A‑‑Whether can be rectified under section 35‑Indian Income‑tax Act, 1922, v.. 23‑A & 35.
An Income‑tax Officer has no jurisdiction to rectify under section 35 of the Indian Income‑tax Act, 1922, an order passed by him under section 23‑A. An order of rectification under sec tion 35 can be made where the charge is created by the statute and not by an order made by the Income‑tax Officer.
S. Sankappa v. Income‑tax Officer (1961) 68 I T R 760 (S C) applied.
Abraham (C. A.) v. Income‑tax Officer (1961) 41 I T R 425 (S C) : Kalawati Devi Harlalka v. Commissioner of Income tax (1967) 66 I T R 680 (S C) ; Parikh (M. M.), Income‑tax officer v. Navanagar Transport and Industries Ltd. (1967) 63 I T R 563 (S C) ref.
C. S. P. Singh for Petitioner.
Shanti Bhushan and Br. Rishi Ram Misra for Respondents.
In these four connected writ petitions the same question of law arises and for that reason they are being disposed of by this common judgment.
Writ Petitions Nos. 3251 of 1968 and 3252 of 1968 have been filed by M/s. J. K. Commercial Corporation Ltd. The first writ petition is in connection with the assessment year 1955‑56 and the second one relates to the year 1956‑57.
Writ Petitions Nos. 3253 of 1968 and 3254 of 1968 have been filed by M/s. J. K. Synthetics Ltd. The first one relates to the year 1955‑56 and the second one relates to the year 1956‑57. The petitioners were assessed in respect of the years mentioned above by the Income‑tax Officer. Subsequent to the assessment, the Income‑tax Officer concerned started proceedings under section 23‑A of the Income‑tax Act, 1922, against the petitioners and passed an order under that section. However, later on, under section 35 of the Act he wanted to rectify the order passed under section 23‑A. The petitioners objected on the ground that an order passed under section 23‑A is not an order of assessment and, consequently, no rectification in respect of the same could be made. The Income‑tax Officer overruled the plea and on January 18, 1960, rectified the order passed under the provisions of section 23‑A. The petitioners filed a revision application before the Income‑tax Commissioner but the same was dismissed on September 18, 1963.
The question that requires consideration by us is whether the Income‑tax Officer concerned had jurisdiction to rectify an order grassed under section 23‑A of the Act: Mr. C. S. P. Singh, the learned counsel for the petitioners, has contender that the word "assessment" as used in section 35 of the Act means an assessment order passed finder the charging section. He contends that an order passed under section 23‑A nor being an order passed under the charging section is riot an assessment order within the meaning of section 35 of the Act.
Dr. Rishi Ram, on the other hand, contends on behalf of the Income‑tax Department that the word "assessment" is of vast amplitude and it clearly means an order by which liability to pay the tax is created. He has a relied upon C. A. Abraham v. Income‑tax Officer ((1961) 41 I T R 425 (S C)) for the proposition that the word "assess ment" has different meanings and upon Kalawati Devi Harlalka v. Commissioner of Income‑Tax ((1967) 66 I T R 680 (S C)) for the proposition that the word "assessment" has a very comprehensive meaning. These two cases, however, did not deal with the interpretation of that word as used in section 35 of the Act and did not relate to the proceedings under that provision. Section 35, so far as relevant for our purpose, reads:
"The Commissioner or Appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or, in the case of the Commis sioner, in revision under section 33‑A and the Income‑tax Officer may, at any time within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by any assessee . . . .
We are concerned with the second part of this provision. This provision confers jurisdiction on an Income‑tax Officer to rectify any mistake apparent from the record of . . . assessment or refund. . .
The use of the words "rectify any mistake apparent from the record of assessment" instead of the words "rectify any mistake in the assessment order" do no doubt support the submission made on behalf of the Income‑tax Department that any proceeding in the assessment record could be rectified. Clearly and admittedly, an order under section 23‑A of the Act is appealable, and if an appeal is filed, then any mistake in the appellate order can admittedly be rectified by the Commissioner or the appellate Assistant Commissioner, as the case may be, under this provision. If the appellate orders in such cases can be rectified it becomes difficult to see why an original order under section 23‑A cannot be rectified. We are, however, of the opinion that the matter is concluded by the Supreme Court decisions. In S. Sankappa v. income‑tax Officer ((1968) 68 I T R 760 (S C)) the Supreme Court observed:
"The salient feature of these and other orders is that the liability to pay tax arises not from the charge created by statute, but from the order of the Income‑tax Officer."
The learned Judges followed the earlier decision of the Court in M. M. Parikh, Income‑tax Officer' v. Navanagar Transport & Industries Ltd. ((1967) 63 I T R 663 (S C)) Mr. C. S. P. Singh, the learned counsel for the petitioners, contends that S. Sankappa's case incorporates a categorical, statement by the Supreme Court that an order under section 35 of the Act must be an order where the charge is created by the statute and not by an order made by the Income‑tax Officer.
We, therefore, allow these writ petitions and quash the impugned orders passed by the Commissioner and the Income tax Officer against the petitioner under section 35 of the Act. The parties are directed to bear their own costs.
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