H.N. Seth, J. - (1.) THIS is a petition under Article 226 of the Constitution of India. The petitioner is a co-operative society registered under the Cooperative Societies Act. It carries on banking business and has various co-operative credit societies as its members. During the assessment year 1963-64, it derived income from various sources, viz., banking business, property, interest on securities and dividends. By his order dated January 13, 1964, the Income-tax Officer computed the petitioner's total income under various heads as follows :
(2.) THE Income-tax Officer directed that the amount of Rs. 2,02,477, which represented the petitioner's income from banking business, was to be included in its total income for rate purposes only. Subsequently, he issued a notice under Section 154/155 of the Income-tax Act, 1961, stating that the order dated January 30, 1964, was to be rectified as the petitioner was liable to pay additional surcharge, amounting to Rs. 11,260.13, which ought to have been charged but was not so charged. THE petitioner appeared before the Income-tax Officer and denied his liability for the additional surcharge. THE Income-tax Officer, thereafter, issued a notice of demand for a sum of Rs. 8,010.09 as additional surcharge computed under Section 3 of the Indian Finance Act, 1963. THE petitioner complains that the notice of demand was not accompanied by the order of the Income-tax Officer, rectifying the earlier assessment order. By means of a letter dated March 21, 1967, the petitioner requested the Income-tax Officer to supply to it a copy of the order in pursuance of which the demand in question had been raised, but the same was not supplied. As the period of limitation for filing an appeal was about to expire, the petitioner filed an appeal before the Appellate Assistant Commissioner, annexing a copy of the notice of demand dated March 15, 1964. Even after filing the appeal, the petitioner continued its efforts for obtaining a copy of the order by which the original assessment order dated January 13, 1964, was rectified. Ultimately, on June 21, 1968, the Income-tax Officer informed the petitioner that there was no order passed under Section 154 of the Income-tax Act, 1961, copy of which could be supplied to it. THE Appellate Assistant Commissioner, thereafter, dismissed the appeal filed by the petitioner on October 9, 1968, holding that so long as no order under Section 154 of the Act was passed on the application of the assessee, no appeal lay. THE petitioner then went up in revision before the Commissioner of Income-tax. THE Commissioner of Income-tax by his order dated August 13, 1970, dismissed the revision application. He found that, as a matter of fact, the Income-tax Officer did make an order under Section 154 of the Act on January 30, 1967, to the following effect: " Certain mistakes in calculation of tax have come to notice which are rectified as per this form by charging additional surcharge." It was under some misapprehension and confusion that the copy of the orders was not supplied to the petitioner. The Commissioner further held that the petitioner was liable to pay additional surcharge which had been levied with reference to residual income. In its opinion the levy of additional surcharge was quite distinct and different from the levy of income-tax, and exemption conferred on the business income of co-operative societies from payment of income-tax was not available in respect of additional surcharge. The petitioner then filed an application dated August 28, 1970, before the Appellate Assistant Commissioner for rectifying" its appellate order dated October 9, 1968, on the ground that it suffered from a manifest error inasmuch as it proceeded to decide the appeal on a wrong assumption that no order rectifying the assessment order dated January 13, 1964, had been passed. Another application dated September 1, 1970, for rectifying the revisional order of the Commissioner of Income-tax dated August 13, 1970, was also filed. It was claimed that the Commissioner of Income-tax had not decided the real issue involved in the case. In this writ petition no averments about the fact of these two applications has been made.
(3.) BY this petition, the petitioner prays for the quashing of the order made by the Income-tax Officer, dated January 30, 1969, and notice of demand issued in pursuance of it, as also of the appellate and revisional orders passed by the Appellate Assistant Commissioner and the Commissioner of Income-tax dated October 9, 1968, and August 13f 1970, One of the grounds urged by the petitioner in support of its prayer lor quashing the orders passed by the Appellate Assistant Commissioner and the Commissioner of Income-tax is that the Appellate Assistant Commissioner misconceived the proceedings and passed an order dismissing the appeal under a wrong impression that an application for rectifying the original assessment order dated January 13, 1964, had been moved on behalf of the petitioner and that no orders on that application had been passed. It was contended that the proceedings for rectification were initiated by the Income-tax Officer suo motu and an order for rectification had been made. Learned counsel for the petitioner contended that the Income-tax Officer did not supply copy of the order rectifying the original assessment and thereby he deprived the petitioner of an effective right of appeal. It is true that an irregularity was committed by the Income-tax Officer when he did not supply a copy of the order rectifying the original assessment order. The Appellate Assistant Commissioner decided the appeal on an erroneous assumption that an application for rectifying the assessment order dated January 13, 3964, had been moved on behalf of the petitioner and that no orders on the same had been passed. The order dated January 13, 1964, rectifying the assessment, however, was brought to the notice of the petitioner during the hearing of the revision by the Commissioner of Income-tax. The Commissioner of Income-tax went into the merits of the objection, raised by the petitioner, to the demand of additional surcharge and rejected the same. In the circumstances, it will not be desirable to interfere with orders passed by income-tax authorities unless it is found that the contention that the Income-tax Officer has no jurisdiction to demand additional surcharge has substance.;