P.K. ACHUTHAN Vs. INCOME TAX OFFICER AND ANR.
LAWS(KER)-1955-8-24
HIGH COURT OF KERALA
Decided on August 23,1955

P.K. ACHUTHAN Appellant
VERSUS
INCOME TAX OFFICER AND ANR. Respondents

JUDGEMENT

Joseph Vithayathil, J. - (1.) THE Petitioner in Original Petition No. 16 of 1954 of this Court is the Appellant. The original petition is for canceling the order passed by the Commissioner of Income Tax, Mysore, Travancore -Cochin and Coorg, under Section 43 of the Cochin Income Tax Act, VI of 1117, and for quashing the notice issued by the Income Tax Officer, Trichur, demanding payment of the Income Tax as per the order of the commissioner. The Appellant's income for the assessment year 1123 M. E. was assessed under the Cochin Income tax Act by the Deputy Commissioner of Income Tax, Trichur, at Rs. 51,643/ - and he was directed to pay as Income Tax Rs. 14,126 -3 -0. He appealed to the Commissioner of Income Tax, Cochin, from this order of assessment. While the appeal was pending, the Indian Income Tax Act, Act XI of 1922, was extended to the State by the Finance Act, Act XXV of 1950. Under the Indian Income Tax Act the appeal had to be heard by the Appellate Assistant Commissioner of Income Tax, Ernakulam. The Appellate Assistant The Commissioner heard the appeal and reduced the assessable income of the Appellant by Rs. 16,103/ -. Consequently the Income Tax payable by the Appellant was reduced to Rs. 6973 -7 -0. The Commissioner of Income Tax, Mysore, Travancore -Cochin and Coorg, (second Respondent) called for the records of the case and revised the order of the Appellate Assistant Commissioner of Income Tax, Ernakulam under Section 43 of the Cochin Income Tax Act, VI of 1117. The order of the Appellate Assistant Commissioner was set aside and that of the Deputy Commissioner of Income Tax, was restored.
(2.) IN O. P. No. 16 of 1954 filed by the Assessee he prayed for quashing the order of the Commissioner of Income Tax on two grounds, viz., (1) the Commissioner of Income Tax had no jurisdiction to revise the order of the Appellate Assistant Commissioner and (2) the Commissioner passed the order in revision without giving the Assessee reasonable opportunity of being heard. M. S. Menon J., who heard the original petition held that the Commissioner of Income Tax had jurisdiction to revise the order of the appellate Assistant Commissioner under Section 43 of the Cochin Income Tax Act, VI of 1117 and that the Assessee was given reasonable opportunity of being heard before the Commissioner passed his order. The original petition was accordingly dismissed with costs. The appeal is from this order. The two questions to be decided in the appeal are; (1) whether the Commissioner of Income Tax had jurisdiction to revise the order of the Appellate Assistant Commissioner under Section 43 of the Cochin Income Tax Act, VI of 1117, and (2) Whether the Assessee was given reasonable opportunity of being heard before the Commissioner passed his order.
(3.) AS stated already, the assessment in this case related to the year 1123 M. E. and was made under the Cochin Income Tax Act, VI of 1117. Under that Act there were three classes of income - tax Authorities, viz., (1) the Commissioner of Income Tax, (2) the Deputy Commissioner of Income - tax and (3) Income Tax Officers (vide Section 8(1) Section 8(2) provided that Government might, by general or special notification, in the Cochin Government Gazette, direct that the powers conferred on the Income Tax Officer and the Deputy Commissioner of Income Tax, by or under the Act, should in respect of any specified case or classes of cases, be exercised by the Deputy Commissioner and the commissioner respectively and that, for the purposes of any case in respect of which such a notification applied, references to the Act or any Rule made hereunder to the Income Tax Officer and the Deputy Commissioner should be deemed to be references to the Deputy Commissioner and the Commissioner respectively. From an order of assessment made by the Income Tax Officer Appeal lay to the Deputy Commissioner of Income Tax and from the appellate order of the Deputy Commissioner of Income Tax a second appeal lay to the Commissioner of Income Tax. In respect of cases in which the original order of assessment was made by the Deputy Commissioner of Income Tax appeal lay to, the Commissioner of Income Tax. Section 43 of the Act conferred on the Commissioner the power of revision. That section, as amended by Act XXII of 1122, read as follows; 43 (1) The Commissioner may of his own motion call for the record of any proceeding under this Act which has been taken by any authority subordinate to him or by himself when exercising: the powers of the Deputy Commissioner under Sub -section. (2) of Section 8(2) On receipt of the record the Commissioner may make such, enquiry or cause such enquiry to be made and notwithstanding the provisions contained in Sections 41, 42 and 44 enhance or reduce any assessment or penalty or pass such other orders as he thinks fit: Provided that he shall not enhance an assessment or a penalty or pass any other order prejudicial to the Assessee without hearing him or giving him a reasonable opportunity of being heard; Provided further that an order of the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the Assessee; Provided further that the Commissioner shall not initiate any proceeding under this section after the expiration of one year from the date of the order sought to be revised.;


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