Raj Kumar Deorah and Sons vs Commissioner of Income Tax and Another

J.N. Sarma, J.—This writ petition has been filed challenging the order dated March 13, 1995, passed by the Assistant Commissioner of Income Tax, Circle II(1), Guwahati, u/s 155 of the Income Tax Act, 1961. It is alleged that by that order, the earlier assessment completed u/s 143(3) of the Income Tax Act was rectified. What happened in this case was that on March 31, 1995, the income of Raj Kumar Deorah and Sons was completed and his share was shown as Rs. 1,18,878. On the same date itself it come to the notice of the Assessing Officer that there was a mistake and accordingly it was corrected as Rs. 1,93,068 and it was found that the share of this partner was 25 per cent, in the firm and the profit was Rs. 1,18,875 and accordingly that assessment order was passed vide annex-ure II. It is the legality and validity of this order which is challenged in this writ petition.

Heard Dr. A. K. Saraf, learned counsel for the petitioner, and Mr. U. Bhuyan, learned counsel for respondents. An affidavit in opposition has been filed on behalf of the respondents where in para. 4 it has been stated as follows :

"4. That with regard to the statements made in paragraph 4 of the writ petition, it is stated that the share income of the partner from the firm, S. B. Industries, was assessed in the assessment year 1992-93 by order dated March 31, 1995, passed u/s 143(3) of the Income Tax Act, 1961 (for short ''the Act'' hereinafter), by inadvertent mistake. On a perusal of the assessment order of the registered firm, S. B. Industries, for the assessment year 1992-93, where the petitioner is a partner, it was noticed that the share income of the partner was much higher. Hence, the assessment order of Raj Kumar Deorah and others for the assessment year 1992-93 was rectified taking therein the correct share of income from the firm''s assessment. The said rectification order was passed on March 31, 1995, and duly served upon the assessee. It is stated that no enhancement in the assessment as such was made in the hands of the partner except that the share income of the firm, S. B. Industries, which was wrongly taken was corrected in incorporating the correct share of profit by resorting to the provisions of Section 155 of the Act."

In para. 11, it has been stated as follows :

"That the submissions made in paragraph 17 of the writ petition are not tenable inasmuch as adequate and efficacious alternative remedy is available to the petitioner under the provisions of the Act. The petitioner can file statutory appeal before the Commissioner of Income Tax (Appeals), Guwahati, and in fact the other partner of the firm, Sri Rohit Kumar Deo-rah, has availed of the alternative remedy by filing an appeal before the Commissioner of Income Tax (Appeals), Guwahati. It has also been stated that an appeal has also been filed against the firm''s assessment order u/s 143(3) (annexure "III" to the writ petition) and as such the writ petition filed by the petitioner is not maintainable."

After a lapse of almost six years, I am not inclined to throw out this application on the ground of availability of alternative remedy, but I want to dispose of the matter on the merits.

Dr. A. K. Saraf, learned counsel for the petitioner, relying on Section 155 of the Income Tax Act, urged that in this case notice is mandatory. This submission of learned counsel has no force in view of the fact that Section 155 envisages a different position. Section 155(1)(a), (b) and (c) is quoted below: "155. (1) Where, in respect of any completed assessment of a partner in a firm it is found-

(a) on the assessment or reassessment of the firm, or

(b) on any reduction or enhancement made in the income of the firm under this section, Section 154, Section 250, Section 254, Section 260, Section 262, Section 263 or Section 264, or

(c) on any order passed under Sub-section (4) of Section 245D on the application made by the firm,

that the share of the partner in the income of the firm has not been included in the assessment of the partner or, if included, is not correct, the Assessing Officer may amend the order of assessment of the partner with a view to the inclusion of the share in the assessment or the correction thereof, as the case may be ; and the provisions of Section 154 shall, so far as may be, apply thereto, the period of four years specified in Sub-section (7) of that section being reckoned from the end of the financial year in which the final order was passed in the case of the firm."

Section 155 provides that the provisions of Section 154 shall, so far as may be, apply thereto. Section 154(3) provides as follows :

"An amendment, which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this section unless the authority concerned has given notice to the assessee of its intention so to do and has allowed the assessee a reasonable opportunity of being heard."

On the basis of this Section 154(3), learned counsel makes the submission that without issuing a notice and without a reasonable opportunity of being heard, no correction can be made and in support of this contention he places reliance on the following decisions :

Income Tax Officer, B-Ward Vs. Mohanlal, That was a case from the Andhra Pradesh High Court. There the notices which were issued for rectification of the mistakes u/s 35 of the Indian Income Tax Act, 1922, were challenged on the ground that the notices became barred by time and thus the notices issued by the respondent are without jurisdiction and illegal.

The learned counsel relies on the following portion (page 129) :

"The real question which arises in the present proceedings is whether the rectification order made by the Income Tax Officer on February 17, 1963, was a valid order. We think it was not. u/s 35(1) of the Act, a provision which admittedly applies to the present proceedings, it was incumbent upon the Income Tax Officer before he made any rectification to issue notice to the assessee communicating his intention to rectify the provisional assessment which he had earlier made. He was also under an obligation to allow a reasonable opportunity of being heard. It could not be doubted that the first proviso to Section 35(1) is mandatory and ought to have been followed. The effect of not following that mandatory provision cannot but be to make the order passed by the Income Tax Officer a nullity. We are fortified in our view by a decision of this court in Karri Ramakrishna Reddy Vs. Tax Recovery Officer,

This position really does not arise for decision before the court inasmuch as indicated above, the point which was urged was that notice having been issued beyond four years, that is without jurisdiction.

Be that as it may, on the facts and circumstances of this case, this decision does not help the petitioner.

The next case relied on by learned counsel is M. Chockalingam and Another Vs. Commissioner of Income Tax, Madras and Another, That was a case where the assessment was completed on July 11, 1953, and August 30, 1954. Thereafter, in the year 1956, the Income Tax Officer started proceeding u/s 35 of the Act for rectifying the assessment and no notice was sent to either brother by the Income Tax Officer and ordered to pay penal interest. It was in that background, the apex court in page 41 pointed out as follows :

"A similar view was also expressed by this court in Sinha Govindji Vs. The Deputy Chief Controller of Imports and Exports and Others, It is more so in this case where the proviso to Section 35 itself makes it incumbent upon the Income Tax Officer to give notice and a hearing to an asses-see when the effect of the rectification would be the enhancement of the assessment. The learned counsel for the department raised the forlorn argument that the addition of penal interest is not enhancement of assessment as stated in the proviso. We do not see what else it could be. The Word ''assessment'' is used in the proviso not as an equivalent of the tax calculated at the rate given in the Finance Act but the total amount which the assessee is required to pay. The proviso applies whenever the effect of the order is to touch the pocket of the assessee and in our opinion this was such a case."

This case also is of no help to the petitioner inasmuch as there is no dispute with regard to the total income of the firm and the share received by each of the partners. There is no dispute that this was the amount received by the petitioner as profit from that firm and the earlier assessment order which was mistakenly shown as the amount as indicated above and that was only corrected. By taking this technical stand, stay order was obtained in the year 1995 and since then the petitioner is enjoying the benefit.

The writ court is not a forum where a person can get relief on the basis of technicalities. It must be shown that substantial injustice has been caused to a person. That is what is not found in this case.

In view of that matter, this writ application has no merit and accordingly it stands dismissed. Stay order, passed earlier also stands vacated.