TRIMBAK TOTARAM Vs. COMMISSIONER OF INCOME TAX C P AND U P
INCOME TAX APPELLATE TRIBUNAL
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This is an application for issue of a writ of mandamus against the Commissioner of Income Tax under Sec. 66(3) of the Income Tax Act. -
(2.) The applicant was assessed to income tax by the Income Tax Officer, Khamgaon, by an order under Sec. 26(3) of the Income Tax Act dated 19-2-34 for the Assessment year 1933-34. An appeal was then preferred to the Assistant Commissioner, Amraoti, but it was dismissed by order dated 11-10-34. The Commissioner of Income Tax was requested to revise this order but he declined to revise (vide his order dated 12-12-34). Thereafter the applicant applied to the Commissioner of Income Tax, under Sec. 66(2) accompanied by a fee of Rs. 100 requiring him to refer to the High Court the question of law arising out of the aforesaid order but the Commissioner of Income-tax refused to state the case by order dated 13-2-35. The applicant feeling himself aggrieved by this decision of the Commissioner of Income-tax has preferred this application for issue of a writ of mandamus against the Commissioner of Income-tax.
A preliminary objection was raised at the hearing that this application is not tenable. It is contended that under the new amendment of Sec. 66 of the Income-tax Act, no reference lies against an order of the Income-tax Commissioner under Sec. 33 unless the order is one which involves an enhancement of the assessment or is otherwise such as is prejudicial to the assessee, but if the Income-tax Commissioner simply maintains the decision of the Assistant Commissioner and the assessment made by him, it cannot be said that the order of the Commissioner of Income-tax is such as is prejudicial to the assessee. This was the view taken in Venkatachalam v. Commissioner of Income Tax, Madras (I.L.R. 58 Mad. 367 at 369) and has been followed by a Divisional Bench of this High Court in M.J.C. No. 80 of 1935. Counsel for the assessee replying to this objection argued that it was not proper to urge that when he applied to the Commissioner of Income Tax under Sec. 66(2) for making a reference he was applying for an order of reference arising out of the order of the Commissioner of Income-tax. It was argued that it could not be presumed that the applicant was making an untenable application if under the proviso of Sec. 66(2) as amended no application for reference could be made. If the Income-tax Commissioner has only maintained the order of the Assistant Commissioner of Income tax it was not proper to say that the application that was made was against the order of the Commissioner of Income-tax. Counsel for applicant wants me to hold that the application was one against the order of the Assistant Commissioner of Income tax and that the same has been refused. He therefore maintains that his application is tenable and that the writ should be issued against the Commissioner of Income tax. The argument of the Counsel for the applicant though ingenious has no substance. In his application to the Income tax Commissioner he has very clearly stated that he was applying for reference after the decision by the Commissioner of Income-tax on 12-12-34. He also stated therein that he received the intimation of the order on or ab out December 20, 1934. This application for reference was filed before the Commissioner for Income tax on February 5, 1935. It is id le to argue that it was an application against the order of the Assistant Commissioner of Income tax. Under the Income tax Act, an application for reference has to be filed within 60 days of the date on which the assessee is served with a notice of an order under Sec. 31 or 32 or of an order under Sec. 33 enhancing an assessment or otherwise prejudicial to him. The application before the Commissioner of Income tax was filed within 60 days of the service of a notice of an order under Sec. 33. The Commissioner of Income tax rejected that application pointing out that no reference lay inasmuch as his order did not enhance the assessment and was not such as was otherwise prejudicial to the assessee. In the application for the writ of mandamus in this Court it has been very clearly stated in the application that the Commissioner of Income tax dismissed the application for review by order dated 12-12-34 and thereupon the applicant made an application to the Commissioner of Income tax under Sec. 66(2) requiring him to refer to the High Court the questions of law arising out of the aforesaid order and decision. Nothing could be clearer than this statement of the assess ee that his application for reference to the Commissioner of Income tax was one arising out of the order of the Commissioner himself and not from the order of the Assistant Commissioner of Income-tax as is argued before me.
(3.) IT is not disputed before me that if his application was against the order of the Commissioner of Income Tax it is not tenable, but it was tried to be argued that as the income-tax case was pending at the time when the amendment permitting application for reference against the orders of Income Tax Commissioner in certain cases was introduced the amendment should not govern the case of the present assessee but his case should be governed by the Act as it was before the amendment was inserted in it. This does not in any way ma ke the position of the assessee better. Under the old Act in no case a reference arose from an order under Sec. 33 of the Act. Reference could be made only against the order of the Assistant Commissioner of Income Tax. The assessees counsel wants me to hold that as the old Act applied, his application must be treated as one from the order of the Assistant Commissioner of Income Tax. I am clearly of opinion that when the application was made the amendment had already come into force, it being an amendment of the year of 1933 and it was only in view of that amendment that the application before the Commissioner of Income Tax for reference was made. All pending cases will be governed by the Act so amended. The assessee has failed to make any application for reference from the order of the Assistant Commissioner of Income Tax within the stipulated period and I do not find throughout the proceedings any reference whatsoever to the order of the Assistant Commissioner of Income Tax from which a reference was sought. The argument of the respondent therefore regarding the maintainability of the application is not sound and cannot be accepted.;
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