P R VISWANATHAN CHETTIAR Vs. COMMISSIONER OF INCOME TAX
HIGH COURT OF MADRAS
RM. P. R. VISWANATHAN CHETTIAR
COMMISSIONER OF INCOME TAX, MADRAS
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RAJAGOPALAN, J. -
(1.) THE question referred to this Court under Section 66(1) of the Income Tax Act, 1922 ran :-
"Was the Tribunal right in holding that the assessment in this case was made within the period of limitation prescribed under Section 34(2) of the disposal of limitation prescribed under Section 34(2) of the Act "
" * THE facts necessary for the disposal of this case were never in dispute. THE assessment was under Section 34 of the Act, and the assessment year was 1942-43, the accounting year having ended with April 12, 1942. THE assessment was completed on 24th March, 1947. THE assessment order as well as the demand notice under Section 29 of teh Act were despatched by the Income-tax Officer on March 25, 1947. THEy were received by the assessee on April 2, 1947. THE relevant portion of Section 34(2) of the Act ran :- "No order of assessment............... or reassessment under subsection (1) of this section shall be made after the expiry .......... of four years, from the end of the year in which the income, profits or gains were first assessable." * THE contention of the assessee, which was negatived by the departmental authorities and the Appellate Tribunal, was that the assessment in question "was made" within the meaning of Section 34(2) of the Act only on April 2, 1947, when the assessment order was communicated to him, and that that was more than four years after the close of the assessment year 1942-43. THE Appellate Tribunal agreeing with the Income-tax Officer and the Appellate Assistant Commissioner held that the assessment "was made" within the meaning of Section 34(2) of the Act on March 24, 1947.
(2.) IN support of his contention that the assessment in question, that is, the assessment for the assessment year 1942-43, was not made, with in the meaning of Section 34(2) of the Act, till April 2, 19947, on which date alone a copy of the assessment order was communicated to the assessee, the learned counsel for the assessee relied on Swaminathan v. Letchmanan and Muthiah Chettiar v. Commissioner of INcome-taxThe principles laid down in Abdul Ali v. Mirza Khan were followed in Swaminathan v. Letchmanan. Both were cases under Section 77 of the Registration Act, and the statutory expression that had to be construed was the "making of the order" of refusal. IN Secretary of State for INdia in Council v. Gopisetti Narayanaswami Nayudu, the learned Judges held that the expression "date of decision" in Section 13 of Madras Act IV of 1897 was the date when the decision was passed, and the learned Judges further held :-
"A decision cannot be said to be passed until it is in some way pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing what it contains. Till then though it may be written out, signed and dated, it is nothing but the decision which the officer intends to pass."
In Muthiah Chettiar v. Commissioner of Income-tax. Rajamannar, C.J, explained the principle underlying Secretary of State for India in Council v. Gopisetti Narayanaswami Nayudu and Swaminathan v. Letchmanan :-
"........... the rule laid down.... is based upon a salutary and just principle, namely, that if a person is given a right to resort to a remedy to get rid of an adverse order within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and therefore must be presumed to have had knowledge of the order."
(3.) THAT was the principle which the learned Judges applied in Muthiah Chettiar v. Commissioner of Income-tax to construe the expression "an order made" as it was used in sub-section (2) of section 33A of the Income-tax Act. Even without a reference to the cases listed under the expression "made" in Stroud's Judicial Dictionary, III Edition, Vol. 3, at pages 1698 to 1700 it should be obvious that that expression as a statutory expression should be constructed with reference to the context in which that expression has been used in that statute.In Secretary of State for Indian in council v. Gopisetti Narayanaswami Nayudu, itself at page 154 the learned Judges dealt with the contention based upon Section 24 of Madras Act IV of 1897, which required that the decision should be recorded in writing with its reason and should also be communicate to the parties. The learned Judges pointed out :-
"Though, therefore, this provision supports the Government Pleader to the extent that it shows that the date of the order and the date of communication may, in the contemplation of the legislature, be different dates, still it does not support the more important inference that the Act contemplates the starting of limitation before the communication of the order to the parties."
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