Sikri, C. J. - (1.) This appeal by special leave is directed against the judgment of the High Court of Calcutta (D.N. Sinha, C.J., and A. K. Mukherjee, J.) dismissing the appeal of the appellants from the judgment of B.C. Mitra, J., dismissing an application under Art. 226 of the Constitution made by the appellant. The Division Bench followed the decision of this Court in M.M. Parikh v. Navanagar Transport and Industries, 63 ITR 663 .
(2.) The order impugned in the application is dated May 13, 1964. By this order the Income-tax Officer stated that "on scrutiny of the records for the year of account relevant to the assessment year 1955-56 it has been noticed that the Company did not declare any dividends at its general meeting, even though there were sufficient profits available for doing so and that there were no losses incurred in the earlier years". He also noticed that "during the relevant period the Company was one in which the public were not substantially interested in terms of sub-sec. (9) of section 23A." He concluded that "the provisions of Section 23A are, therefore, applicable and the Company is liable to pay additional Super-Tax as per provisions of law". The Income-tax Officer thereupon called upon the Company to show cause in writing why an order under section 23A be not passed. The appellant company protested that an order under S.23A would be an order of assessment or reassessment within S.34 (3) of the Income Tax Act, 1922, and, therefore, would be barred.
(3.) A Bench of five Judges gave special leave. A Division Bench of this Court (Hegde and Grover, JJ.) has referred the case to a larger Bench.;