KALYANKUMAR RAY Vs. COMMISSIONER OF INCOME TAX WEST BENGAL IV CALCUTTA

JUDGEMENT

(1.) ORDER

(2.) SRI Kalyankumar Ray, a tax lawyer from Calcutta, has preferred these petitions raising an attractive and ingenious but, in our opinion, technical and untenable plea. We, therefore, dismissed the petitions on 26-7-91 but stated we would give our reasons later. Hence this order.

(3.) SRI S. Padmanabhan, learned counsel for the petitioner, invited attention to the language of S. 143(3) of the Act which mandates that the I.T.O. "shall, by an order in writing, make an assessment of the total income or loss of the assessee, and determine the sum payable by him on the basis of such assessment". The Department pointing to the placement of a comma after the word "assessee" suggested before the Tribunal that an order in writing is required only for the assessment of the income or loss and that the determination of the sum payable can be an independent process not necessarily in writing. The suggestion seems plausible but is not really tenable. As pointed out for the petitioner, judicial decisions under the 1922 Act as well as the present Act have read both clauses together. 'Assessment' is one integrated process involving not only the assessment of the total income but also the determination of the tax. The latter is as crucial for the assessee as the former. S. 144, which also describes the same process, makes no distinction as suggested. It will not be therefore correct to read the provision as leaving undefined the process of determination of the net sum payable by the assessee. In our opinion, therefore, learned counsel for the petitioner is right in his submission that the I.T.O. has to determine, by an order in writing, not only the total income but also the net sum which will be payable by the assessee for the assessment year in question and that the demand notice under S. 156 has to be issued in consequence of such an order.