- (1.) This appeal by certificate of fitness granted by the Bombay High Court u/s. 261 of the Income-tax Act, 1961 (the Act), is directed against the judgment of the said High Court, dated 16.1.1979, in IT Reference No. 25 of 1970.
(2.) The facts briefly stated are as follows : During the course of a raid by the Customs authorities cash amount of Rs. 47,000.00 was found in the locker standing in the name of the assessee with the Punjab National Bank. After receiving the necessary information about the said recovery, the ITO included the said amount of Rs. 47,000.00 in the assessment of the assessee for the year 1956-57 under the head Income from other sources. On appeal, the AAC held that the amount of Rs. 47,000.00 should be treated as income for the assessment year 1957-58 and this amount was added by him to the income for the assessment year 1957-58. The Tribunal held that the said amount could only be considered in the assessment year 1958-59 inasmuch as the amount was required to be considered as income from undisclosed sources. After the said decision of the Tribunal, the ITO issued a notice u/s. 147 of the Act to the assessee in respect of the assessment year 1958-59 and on reassessment, he redetermined the income of the assessee for that year at Rs. 57,085.00 which included the sum of Rs. 47,000.00. The AAC upheld the contention of the assessee that sec. 147(a) could not be invoked in this case since all the materials were originally made available to the ITO. The AAC was of the view that by reason of sec. 153(3) the time-limit as provided in sec. 153(1) of the Act would not apply. The AAC held that by reason of the provisions of sec. 297(2)(k) of the Act the direction given by the Tribunal must be deemed to be one given under a comparable or equivalent section of the Act. The Tribunal, however, held that the provisions of sec. 297(2)(k) could not be invoked and Explanation 2 to sec. 153(3) could not be pressed into service. The Tribunal referred the question of law to the High Court for opinion. The said question was referred by the High Court in the following terms : Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that Explanation 2 to sec. 153 of the Income-tax Act, 1961, was not applicable
(3.) Agreeing with the Tribunal, the High Court held that sec. 297(2)(d)(ii) was not applicable since the order of the Tribunal was passed under the provisions of the Indian Income-tax Act, 1922 and that Explanation 2 to sec. 153(3) could not be pressed into service. The said view of the High Court is no longer good law in view of the decision of this Court in Mahadeo Prasad Rais V/s. ITO, 1991 192 ITR 402. In that case this Court has construed the provisions of sec. 297(2)(d)(ii) and sec. 297(2)(k) of the Act in the context of sec. 150(1) of the Act and has held that sec. 150(1) would be applicable in respect of the orders passed by the Tribunal under the 1922 Act, on a liberal interpretation of sec. 297(2)(d)(ii) and sec. 297(2)(k) of the 1961 Act. In that case this Court has taken note of the impugned judgment of the High Court as well as the judgments of the Allahabad, Calcutta and Bombay High Courts wherein a contrary view was taken and has affirmed the judgment of the Allahabad High Court. The present case is fully covered by the judgment of this Court in Mahadeo Prasad Rais case (supra). For the reasons given in the said judgment the appeal is allowed, the impugned judgment of the High Court is set aside and the question referred, as reframed by the High Court, is answered in the negative, i.e., in favour of the revenue and against the assessee. No order as to costs.;