Karnataka High Court
Krishna Flour Mills vs Commissioner Of Income-Tax, Mysore, ... on 24 June, 1964
Equivalent citations: AIR1965KANT70, AIR1965MYS70, ILR1964KAR822, (1964)1MYSLJ, AIR 1965 MYSORE 70, ILR (1964) MYS 822, 1965 (1) ITJ 48, (1965) 55 ITR 259
Author: K.S. Hegde
Bench: K.S. Hegde
JUDGMENT Hegde, J.
(1) These petitions are connected petitions and they raise a common question of law. There is a common petitioner in these cases. The Petitioner prays that this Court may be pleased to issue a writ of certiorari or any other appropriate writ or direction, quashing the order made by the respondent on 25-4-1962 under Section 33-A of the Indian Income-tax Act, 1922, (the order impugned in these proceedings) and to issue the appropriate writ, order or direction directing the respondent to exercise his jurisdiction in accordance with law.
(2) The petitioner is a partnership firm carrying on business at Bangalore. It applied for registration under Section 26-A of the Act for the assessment years 1950-51 and 1951-52. Its applications were rejected by the Income-tax Officer. Its appeal before the Income-tax Appellate Assistant Commissioner were unsuccessful. Thereafter, it took up the matter in appeal to the Income-tax Appellate Tribunal. Those appeals were rejected as being barred by time. Thereafter, the petitioner approached the Commissioner of Income-tax under clause(2) of Section 33-A. The Commissioner rejected those applications with the following observations."
"I have called for the records and perused them. These petitions are incompetent, since the assessee has agitated the same matter in appeal before the Tribunal. Hence the petitions are rejected."
The Commissioner has evidently, taken the view that the assessee's case falls under clause (c) of the proviso to sub-section (2) of Section 33-A. The question for decision is whether that view of the law is correct. If that view of the law is held to be erroneous then, it follows that the Commissioner has failed to exercise the jurisdiction vested in him by law.
(3) Clause (c) of the proviso to sub-section (2) of Section 33-A says:
"the order has been made the subject of an appeal to the Appellate Tribunal".
What is meant by the expression "the order has been made the subject of an appeal to the Appellate Tribunal" ?
This question was considered by the Madras High Court in Sreenivasalu Naidu v. Commissioner of Income-tax, Madras 1948-16 ITR 341 :(AIR 1949 Mad 358). Therein it is laid down that an order is made the subject of an appeal within the meaning of clause (c) of the first proviso to sub-section (2) of Section 33-A only when it is the subject matter of an effective appeal. It was further held therein that if an appeal to the Appellate Tribunal under Section 33 is not admitted and is disposed of on the ground that it was filed after the prescribed time the order cannot be said to be the subject of an appeal. This decision was rendered on July 15, 1948. this decision has held the field ever since. Our attention has not been drawn to any decision of any High Court, taking a contrary view. A bench of the Madras High Court followed that decision in Erode Yarn Stores v. State of Madras, 14 STC724 (Mad). A Bench of the Bombay High Court also followed that decision in Jagmohandas Gokaldas v. Commissioner of Wealth Tax, Bombay, (1963) 50 ITR 578 (Bom).
(4) The learned counsel for the Revenue invited our attention to the decision of the Supreme Court in Mela Ram and Sons v. Commissioner of Income-tax, Punjab, 1956-29 ITR 607: ((S) . That decision dealt with Sections 30(2) and 31 of the Act and not with Section 33-A. Nor did the decision of the Calcutta High Court in Gour Mohan Mullick v. Commissioner of Agricultural Income-tax, West Bengal, deal with the scope of clause (c) of the provision to sub-section (2) of Section 33-A, or the meaning of the expression "the order has been made the subject of an appeal to the Appellate Tribunal".
Hence, those decisions do not bear on the point under consideration. We must remember that in this case we are dealing an All India Statute. In interpreting All India Statutes, particularly fiscal statutes, uniformity of construction of various High Courts is eminently desirable. A judicial interpretation accepted as correct for a number of years should not, except for compelling reasons be departed from. There are no such grounds here. Incidentally, we may mention that after the decision in Sreenivasalu Naidu's case, 1948-16 ITR 341; (AIR 1949 Mad 358) was rendered in the year 1948, the Income-tax law has undergone several changes. But the provision with which we are concerned in these petitions has remained intact. Therefore we must assume that the Parliament has accepted the interpretation given in Sreenivasalu Naidu's case, 1948-16 ITR 341: (AIR 1949 Mad 358) as correct.
(5) For the reasons mentioned above, we hold that the Commissioner, on an erroneous view of the law has failed to exercise the jurisdiction vested in him, under Clause (2) of S. 33-A of the Indian Income-tax Act, 1922. We accordingly allow these petitions, set aside the order impugned and direct the Commissioner to deal with petitioner's applications under Section 33-A (2) in accordance with law.
(6) No costs.
(7) Petition allowed.