PETITIONER:
KALAWATI DEVI HARLALKA
Vs.
RESPONDENT:
COMMISSIONER OF INCOME-TAX, WEST BENGAL & ORS.
DATE OF JUDGMENT:
01/05/1967
BENCH:
SIKRI, S.M.
SHAH, J.C.
RAMASWAMI, V.
CITATION:
1968 AIR 162 1967 SCR (3) 833
ACT
Income-tax Act, 1961, ss. 297 and 298-Commissioner issuing notice of revision of assessment under s. 33B of the incometax Act, 1922 - whether such ’ proceedings covered by the expression " proceedings for the assessment" in s. 297(2)(a)-S. 6 General Clauses Act, 1897-Effect of s. 298 and the Income-tax (Removal of Difficulties) Orders, 1962- Validity of.
HEADNOTE
The appellant received a notice on January 24, 1963 from the Commissioner of Income-tax, West Bengal, initiating a revision under s. 33B of the Income-tax Act, 1922, of her assessments for the years 1952-53 to 1960-61. The appellant thereupon filed a petition in the High Court tinder Art. 226 of the Constitution praying that the notice be quashed and the respondent restrained from giving effect to it. A single Bench of the High Court dismissed the petition and in appeal to a Division Bench was also dismissed. it was contended on behalf of the appellant (i) that the Income-tax Act, 1922, having been repealed by the Act of 1961 which came into force on April 1, 1962 the respondent had no power, authority or jurisdiction to initiate the proceedings under s. 33B of the 1922 Act; (ii) that s. 6 of the General Clauses Act, 1897, did not authorise the initiation of the proceedings inasmuch as no steps were taken in respect thereof while the 1922 Act was in force; (iii) that s. 298 of the 1961 Act was void; and in any event, the powers under the section.. under which the Government promulgated the Income-tax (Removal of Difficulties) Order 1962, clause 4 of which purported to cover a case like the present one, can be exercised only in respect of the matters dealt with in s. 297 of that Act which does not deal with proceedings tinder s. 33B of the 1922 Act. HELD : (i) The proceedings initiated by the respondent were valid as they were covered by the expression " proceedings for the .assessment of that person" in Clause (a) of s. 297(2) of the 1961 Act. [841E; 846B] The word "assessment" can bear a very comprehensive meaning; it can comprehend the whole procedure for ascertaining and imposing liability upon the tax-payer. There was nothing in the context of s. 297 which required the expression "procedure for the assessment" to be given a narrower meaning. S. 297 is meant to provide as far as possible for all contingencies which may arise out of the repeal of the 1922 Act. [845A-C] Commissioner of Income-tax, Bombay v. Khemchand Ramdas, 6 I.T.R. 414 at p. 423; A. N. Lakshman Shenoy v. Income-tax Officer, Ernakulum, 34 I.T.R. 275 at p. 291; C. A. Abraham v. Income-tax officer, Kottayam, 41 I.T.R. 425 at pp. 429- 430; Commissioner of Incometax v. Bhikaji Dadabhai & Co., 42 I.T.R. 123 at p. 127; Commissioner of Income-tax v. Patiala Cement Co. Ltd., 32 I.T.R. 333; Bhailal Amin & Scns Ltd. v. R. P. Dalal, 24 I.T.R. 229, referred to. 8 3 4 (ii)S. 6 of the General Clauses Act would not apply because s. 297(2) evidences an intention to the contrary by providing for many matters, some in accord with what Would have been the result under s. 6 and some contrary to such a result. [846A] Union of lndia V. Madan Gopal Kabra, 25 I.T.R. 58, referred to. (iii)Section 298 of the 1961 Act is valid and the present case was covered by cl. 4 of the Income-tax (Removal of Difficulties) Order, 1962.[846 C-D] Jalan Trading Company (Priveite) Ltd. v. Mill Mazdoor junior, [1966] 11 L.L.J. 546; Commissioner of Income-tax v. Dewan Bahadur Ramgopal Mills, 41 I.T.R. 280 and Pandit Banarsi Das Bhanot v. State of Madhya Pradesh, 9 S.T.C. 388, referred to.
JUDGMENT
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1421 of 1966. Appeal from the judgment and order dated December 8, 1964 of the Calcutta High Court in Appeal from Original Order No. 281 of 1963. Debi Pal, R. K. Chaudhuri and B. P. Maheshwari, for the appellant and the Intervener. , D.Narsaraju and R. N. Sachthey, for respondents Nos. I and 2. The Judgment of the Court was delivered by Sikri, J. On January 24, 1963, the Commissioner of Incometax, West Bengal, sent the following notice to Smt. Kalawati Harlalka, appellant before us, hereinafter referred to as the assessee
"Sub : Income-tax assessments of 1952-53 to
1960-61. Assessments erroneous and
prejudicial to the interests of revenue-
Revision of assessments under Section 33B of
the Indian Income-tax Act 1922 proposal for-
Notice regarding.
On calling for and examining the records of
your case for the assessment years 1952-53,
1953-54, 1954-55, 1955-56, 1956-57, 1957-58,
1958-59, 1959-60 and 1960-61 and other
connected records, I consider that the orders
of assessment passed by the Income-tax Officer
’D’ Ward, Howrah, on 7th February, 1961, are
erroneous in so far as they are prejudicial to
the interests of revenue for the following
reasons amongst others.
2.Enquiries made have revealed that no
business as alleged was carried on from the
address declared in the returns. Also the
said Income-tax Officer was not justified in
accepting the initial capital, the acquisition
and
835
sale of jewellery, the income from business,
gift made by you etc. without any enquiry or
evidence whatsoever.
3.1, therefore, propose to pass such
orders thereon as the circumstances of the
cases justify after giving you an opportunity
of being heard under the powers vested in me
under Section 33B of the Income-tax Act, 1922.
The cases will be heard at 11 a.m. on 1st
February, 1963 at my above office when you are
requested to produce the necessary evidence in
support of your contentions. Objections in
writing accompanied by necessary evidence, if
any, received on or before the appointment for
personal hearing will also be duly considered.
Please note that no adjournment of the hearing
will be granted." The assessee on February 1, 1963, protested to the Commissioner against the issue of the notice and stated that the said notice was absolutely bad in law, illegal and void. On the same date the assessee filed an application under Art. 226 of the Constitution in the High Court at Calcutta, inter alia praying that the said notice, dated January 24, 1963, be quashed or set aside and the Commissioner of Income-tax be restrained from giving effect to the said notice. The petition was beard by Banerjee, J., and three points were urged before him: (1)That the Income-tax Act, 1922-hereinafter referred to as the 1922 Act-having been repealed by Income-tax Act, 1961 -hereinafter referred to as the 1961 Act-which came into force on April 1, 1962, the Commissioner of Income-tax had no power, authority or jurisdiction to initiate the proceedings under s. 33B of the 1922 Act; (2)Section 6 of the General Clauses Act in no way authorises the initiation of the said proceedings inasmuch as no steps were taken in respect thereof when the 1922 Act was in force and/or prior to its repeal; and (3)The powers under s. 298 of the 1961 Act can only be exercised in respect of the matters dealt with by s. 297 of the 1961 Act which does not deal with proceedings tinder s. 33B of the 1922 Act. In order to appreciate the grounds and the findings of the learned Judge, it is necessary to set out the relevant statutory provisions.
"S. 33B (1922 Act). Power of Commissioner to
revise Income-tax Officer’s orders.-(1) The
Commissioner may call for and examine the
record of any
83 6
proceeding under this Act and if he considers
that any order passed therein by the Income-
tax Officer is erroneous in so far as it is
prejudicial to the interests of the revenue,
he may, after giving the assessee an opportu-
nity of being heard and after making or
causing to be made such enquiry as he deems
necessary, pass such order thereon as the
circumstances of the case justify, including
an order enhancing or modifying the assess-
ment, or cancelling the assessment and
directing a fresh assessment.
(2) No order shall be made under sub-section
(1)
(a) to revise an order of re-assessment made
under
the provisions of section 34; or
(b)after the expiry of two years from the
date of the order sought to be
revised..........
"S. 297. (1961 Act). Repeals and savings.(1)
The Indian Income-tax Act 11 of 1922, is
hereby repealed.
(2)Notwithstanding the repeal of the Indian
Income-tax Act, 11 of 1922 (hereinafter
referred to as the repealed Act),-
(a)where a return of income has been filed
before the commencement of this Act by any
person for any assessment year, proceedings
for the assessment of that person for that
year may be taken and continued as if this Act
had not been passed;
(b)where a return of income is filed after the
commencement of this Act otherwise than in
pursuance of a notice under section 34 of the
repealed Act by any person for the assessment
year ending on the 31st day of March, 1962, or
any earlier year, the assessment of that
person for that year shall be made in
accordance with the procedure specified in
this Act;
(c)any proceeding pending on the commencement
of this Act before any income-tax authority,
the appellate tribunal or any court, by way of
appeal, reference or revision shall be
continued and disposed of as if this Act had
not been passed;
(d)where in respect of any assessment year
after the year ending on the 31st day of
March, 1940,-
(i)a notice under section 34 of the repealed
Act had been issued before the commencement of
this Act,
the proceedings in pursuance of such notice
may be continued and disposed of as if this
Act had not been passed;
ii) any income chargeable to tax had escaped
assessment within the meaning of that
expression in section 147 and no proceedings
under section 34 of the repealed Act in
respect of any such income are pending at the
commencement of this Act, a notice under
section 148 may, subject to the provisions
contained in section 149, or section 150, be
issued with respect to that assessment year
and all the provisions of this Act shall apply
accordingly;
(e)section 23A of the repealed Act shall
continue
to haveeffect in relation to the
assessment of any com-
pany orits shareholders for the assessment
year ending
on the 31st day of March, 1962, or any earlier
year, and the provisions of the repealed Act
shall apply to all matters arising out of such
assessment as fully and effectually as if this
Act had not been passed;
(f)any proceeding for the imposition of a
penalty in respect of any assessment completed
before the 1st day of April, 1962, may be
initiated and any such penalty may be imposed
as if this Act had not been passed;
(g)any proceeding for the imposition of a
penalty in respect of any assessment for the
year ending on the 31st day of March, 1962, or
any earlier year, which is completed on or
after the 1st day of April, 1962, may be
initiated and any such penalty may be imposed
under this Act;
(h)any election or declaration made or option
exercised by an assessee under any provision
of the repealed Act and in force immediately
before the commencement of this Act shall be
deemed to have been an election or declaration
made or option exercised under the
corresponding provision of this Act;
(i)where, in respect of any assessment
completed before the commencement of this Act,
a refund falls due after such commencement or
default is made after such commencement in the
payment of any sum due under such completed
assessment, the provisions of this Act
relating to interest payable by the Central
Government on refunds and interest payable by
the assessee for default shall apply;
83 8
(i) any sum payable by way of income-tax,
supertax, interest, penalty or otherwise under
the repealed Act may be recovered under this
Act, but without prejudice to any action
already taken for the recovery of such sum
under the repealed Act;
(k)any agreement entered into, appointment
made, approval given, recognition granted,
direction, instruction, notification, order or
rule issued under any provision of the
repealed Act shall, so far as it is not incon-
sistent with the corresponding provision of
this Act, be deemed to have been entered into,
made, granted, given or issued under the
corresponding provision aforesaid and shall
continue in force accordingly;
(1)any notification issued under subsection
(I.) of section 60 of the repealed Act and in
force. immediately before the commencement of
this Act shall, to the extent to which
provision has not been made under this Act,
continue in force until rescinded by the
Central Government;
(m)where the period prescribed for any
application, appeal, reference or revision
under the repealed Act had expired on or
before the commencement of this Act, nothing
in the Act shall be construed as enabling any
such application, appeal, reference or
revision to be made under this Act by reason
only of the fact that a longer period therefor
is prescribed or provision is made for
extension of time in suitable cases by the
appropriate authority."
"S. 298(1961 Act). Power to remove
difficulties. (1) If any difficulty arises in
giving effect to the provisions of this Act,
the Central Government may, by general or
special order, do anything not inconsistent
with such provisions which appears to it to be
necessary or expeditious for the purpose of
removing the difficulty.
(2)In particular, and without prejudice to the
generality of the foregoing power, any such
order may provide for the adaptations or
modifications subject to which the repealed
Act shall apply in relation to the assessment
for the assessment year ending on the 31st day
of March, 1962, or any earlier year."
"S. 6. (The General-Clauses Act).
Where this Act, or any (Central Act) or
Regulation made after the commencement of this
Act, repeals any
3 9
enactment hitherto made or hereafter to be
made, then, unless a different intention
appears, the repeal shall not............ In exercise of the powers conferred under s. 298, the Central Government issued the Income-tax (Removal of Difficulties) Order, 1962, which was published in the Gazette of India on August 8, 1962. Clauses 2, 3 and 4 of the said order read as follows
"2. Registration and refund proceedings to be
regarded as part of Assessment Proceedings:-
For the purposes of clauses (a) and (b) of
subsection (2) of section 297 of the Income-
tax Act, 1961 (43 of 1961) (hereinafter
referred to as the repealing Act), proceedings
relating to registration of a firm or a claim
for refund of tax shall be regarded as a part
of the proceedings for the assessment of the
person concerned for the relevant assessment
year.
3.Completion of assessments in cases covered
by section 297 (2) (b) of the repealing Act.In
cases covered by clause (b) of sub-section (2)
of section 297 of the repealing Act. the
assessments shall be made, inter alia, in
accordance with the procedure specified in the
following sections of the repealing Act, in so
far as they may be relevant for this purpose;
Sections 131 to 136, 140 to 146, 1.53 [except
sub - section (2) and clause (iii) of sub-
section (3)] 156 to 158. 185. 187 to 189, 282
to 284 and 288.
4.Appeal. reference or revision
proceedings in respect of orders passed under
the repealed Act.-( I Proceedings by way of
the first or subsequent appeals, reference or
revision in respect of any order made under
the Indian Income-tax Act, 1922 (11 of 1922)
(hereinafter referred to as the repealed Act)
shall be instituted and disposed of as if the
repealing Act had not been passed.
(2)Any such proceedings instituted under the
repealing Act after the 31st day of March,
1962, and before the date of this Order shall
be deemed to have been instituted under the
repealed Act and shalt be disposed of as if
the repealing Act had not been passed;
Provided that if any such proceeding has been
disposed of before the (late of this Order
under any provision of the repealing Act, it
shall be deemed to have been disposed of under
the corresponding provision of
L9Sup.Cl/67- 10
8 40
the repeated Act and any appeal, reference or
revision in respect of the proceeding so
disposed of shall be instituted and disposed
of as if the repealing Act had not been
passed." The learned Judge held that the expression "proceedings for the assessment" in s. 297 (2) (a) of the 1961 Act had a comprehensive meaning and included proceedings under s. 33A or s. 33B of the 1922 Act. He also held that clauses (c) and (d) of s. 297(2) of the 1961 Act must be deemed to have been enacted by way of abundant caution. In view of his findings, he did not consider it necessary to determine whether s. 6 of the General Clauses Act saved the power under s. 33B of the 1922 Act, but lie observed :
"If it had been necessary so to do, I would
have no hesitation in holding that such power
would be saved under Section 6 clauses (c) and
(e) of the General Clauses Act, there being no
indication to the contrary in the repealing
Act of 1961."
He accordingly dismissed the petition. The assessee appealed and the Division Bench dismissed the appeal. The Division Bench came to the conclusion that "the. provision for assessment are contained in Chapter IV of the Act of 1922 and section 33B finds place in this Chapter and the expression "proceedings for the assessment" indicates that any of the proceedings relating to assessment as contemplated in Chapter IV can be initiated and continued under clause (a) of subsection (2) of section 297 including the proceeding by way of Revision under section 33B of the, Act." The Division Bench repelled the contention of the assessee that cl. (c) affected the scope of cl. (it). It concluded that cls. (d) and (f) had been inserted by way of abundant caution. It also repelled the contention that cl. (4) of the Income-tax (Removal of Difficulties) Order, 1962, was bad, and observed that "what clause (4) has done is simply to make explicit what was implicit in clause (a) and it is with the object of removing the doubt or difficulty, if any, existing in respect of the construction of clause (a) of section 297(2) that a specific provision like clause (4) was introduced in the Removal of Difficulties Order." In view of these conclusions the Division Bench felt that "it is not necessary to express any definite opinion on the point whether section 6 of the General Clauses Act 1897, is available for the purpose of interpreting the provisions of the Act of 1961." In the result the appeal before the Division Bench failed and was dismissed. The assessee having obtained a certificate of fitness under Art. 133 of the Constitution, the appeal is now before us. 841 The learned counsel for the assessee contends that the expression "proceedings for the assessment" in s. 297 (2) (a) of the 1961 Act meant original proceedings for the assessment of a person and not appellate or revisional proceedings. He says that Parliament has left the question of appeal and revision to be determined by the.application of s. 6 of the General Clauses Act. He further says that the word "assessment" has not been used in its wide sense because Parliament has provided for the imposition of penalty in cls. (f) and (g), which ordinarily falls within the wide sense of "assessment". It has also provided for what is to happen to pending proceedings in cl. (c). He urges that the High Court erred in holding that these subclauses had been added by way of abundant caution. The learned counsel for the respondent, Mr. S. T. Desai, conends that s. 297 (2) (a) is comprehensive in its scope and ampliude to include any proceedings under s. 33B of the 1922 Act. de further says that s. 6 of the General Clauses Act will apply of the extent there is no contrary intention in s. 297 (2) of the 1961 Act. He finally contends that even if there is any doubt regarding the scope of cl. (a) it is removed by the, Removal of Difficulties Order issued under s. 298. It seems to us that the High Court is right in holding that 297 (2) (a) of the 1961 Act includes with its scope a proceeding under s. 33B of the 1922 Act. There is no doubt that the word ’assessment" does have subject to the context a very wide meaning. The Privy Council in Commissioner of Income Tax, Bombay v. Khemchand Ramdas(l) observed:
"In order to answer them, it is essential to
bear in mind the method prescribed by the Act
making an assessment to tax, using the word
assessment in its comprehensive sense as
including the whole procedure for imposing
liability upon the tax payer."
In A. N. Lakshman Shenoy v. Income-tax
Officer, Ernakulam this Court held
"Now the question is in what sense has the
word "assessment" been used in section 13(1)
of the Finance Act, 1950. Two circumstances
may be noticed at once. The long title says
that the Finance Act, 1950, is an Act to give
effect to the financial proposals of the
Central Government for the year beginning on
April 1, 1950, and in section 13(1) the
collocation of the words is "levy, assessment
and collection of income-
(1) 6 I.T.R. 414 at p.423.
(2) 34 I.T.R. 275 at p. 291.
842
tax". In our opinion, both these
circumstances point towards a comprehensive
meaning; for it could not have been intended,
as part of the proposal of the Central
Government, that those whose income had
totally escaped assessment should be liable
but those who had been under-assessed should
go scot free. We can see nothing in the words
of the section which would justify such a
distinction; we say this quite apart from the
argument that section 13(1) should be
interpreted in consonance with the financial
agreement entered into between the Rajpramukh
and the President, an argument to which we
shall presently advert. Moreover, the
collocation of the words, "levy, assessment,
and collection" indicates that what is meant
is the entire process by which the tax is
ascertained, demanded and realised."
In C. A. Abraham. v. Income-tax Officer
Kottayam(1) this Court observed :
"A review of the provisions of Chapter IV of
the Act sufficiently discloses that the word
"assessment" has been used in its widest
connotation in that Chapter. The title of the
chapter is "Deductions and Assessment". The
section which deals with assessment merely as
computation of income is section 23; but
several sections deal not with computation of
income, but determination of liability,
machinery for imposing liability and the
procedure in that behalf. Section 18A deals
with advance payment of tax and imposition of
penalties for failure to carry out the
provisions therein. Section 23A deals with
power to assess individual members of certain
companies on the income deemed to have been
distributed as dividend, section 23B deals
with assessment in case of departure from
taxable territories, section 24B deals with
collection of tax out of the estate of
deceased persons, section 25 deals with
assessment in case of discontinued business,
section 25A with assessment after partition of
Hindu undivided families and sections 29, 31.
33 and 35 deal with the issue of demand
notices and the filing of appeals and for
reviewing assessment and section 34 deals with
assessment of incomes which have escaped
assessment. The expression "assessment" used
in these sections is not used merely in the
sense of computation of income and there is in
our judgment no ground for holding that when
by section 44, it is declared that the
partners or members of the association shall
be jointly and severally liable to assessment.
it is only intended to declare the
(I 41 I.T.R. 425 -,it pp. 429-430.
843
liability to computation of income under
section 23 and not to the application of the
procedure for declaration and imposition of
tax liability and the machinery for
enforcement thereof." In Commissioner of Income-tax v. Bhikaji Dadabhai & Co.(1) this Court quoted with approval the observations regarding the word "assessment" in Abraham v. Income-tax Officer(-). In Commissioner of Income-tax v. Paiiala Cement Co. Ltd.( a similar question arose. The question was whether under s. 13 of the Finance Act, 1950, the appeals in respect of assessments for 1949-50 would be governed ’by the Patiala Income-tax Act, 2001, or by the Indian Income-tax Act. We may here set out s. 13 of the Finance Act, 1950 :
"If immediately before the 1st day of April,
1950, there is in force in any Part B State
other than Jammu and Kashmir or Manipur,
Tripura or Vindhya Pradesh or in the merged
territory of Cooch-Behar any law relating to
income-tax or super-tax or tax on profits of
business, that law shall cease to have effect
except for the purposes of the levy,
assessment and collection of income-tax and
super-tax in respect of any period not
included in the previous year for the purposes
of assessment under the Indian Income-tax Act,
1922 (XI of 1922) for the year ending on 31st
day of March, 1951, or for any subsequent
year, or, as the case may be, the levy,
assessment and collection of the tax on
profits of business for any chargeable
accounting period ending on or before the 31st
day of March, 1949." This Court held that it is the provisions of the Patiala Act 2001 that applied. No point was raised that in any event the Patiala Act having ceased to have effect, the provisions dealing with appeals were not concerned with the levy, assessment an( collection of income-tax. In Bhailal Amin & Sons Ltd. v. R. P. Dalal(1) the Bombay High Court (Chagla, C.J., & Shah J.), interpreting s. 7 of the Taxation Laws (Extension to Merged States and Amendment) Act (LXVII of 1949) the relevant portion of which is in the following terms :
"7. (1) If, immediately before the 26th day of
August, 1949, there was in force in any of the
merged States any law relating to income-tax,
super-tax, or business profits tax, that law
shall cease to have effect
(1)42 I.T.R. 123 at p. 127.
(3)32 I.T.R. 333.
(2) 41 I.T.R. 42 5
(4) 24 I.T.R. 229
844
except for the purposes of the levy,
assessment and collection of income-tax, and
super-tax in respect of any period not
included in the previous year for the purposes
of assessment under the Indian Income-tax Act,
1922, as extended to that State by Section 3,
or, as the case may be,, the levy, assessment
and collection of business profits tax for any
chargeable accounting period ending on or
before the 31st day of March, 1948, and for
any purposes connected with such levy,
assessment or collection..........
observed
"It is urged by Mr. Palkiwalla for the
petitioners that the words "levy, assessment
and collection" do not include a right of
appeal against the assessment order and the
Baroda law did not continue to apply to any
rights of appeal that the petitioners might
have had in respect of the order of
assessment. In the first instance this
argument appears to me to be a perfectly
futile argument, because, if I were induced to
take such a view of the section it would leave
the petitioners without any right of appeal at
all. If the Baroda Act ceases to apply and
obviously the Indian Act does not apply to the
assessments of accounting years prior to the
accounting year 1948-49, there is no right of
appeal; and the petitioners could not have
gone to the Tribunal at all, for there is no
other section or sections which confer any
right of appeal under the Indian Income-tax
Act, in respect of assessments made under the
Baroda Act. But, apart from this, in my
opinion the words "for the purposes of levy,
assessment and collection of incometax"
include all procedure for the levy, assessment
and collection of income-tax, for without the
procedure there can be no levy, assessment or
collection; and taking in particular
"assessment" with which we are concerned on
this petition the assessment is not final
until all remedies by way of appeals which are
given by the Act are exhausted. This view is
emphasized by the concluding, words of sub-
section (1) which are "for any purposes in
connection with such levy, assessment and
collection." There can in any event be no
doubt that the procedure for assessment
including rights of appeal are included in the
words "purposes connected with assessment." In
my opinion. therefore. the true construction
of sub-section (1) of section 7 is that the
Baroda Act continues to apply to the
assessments of the petitioners even as regards
the right of apeal which was given under that
Act to the Huzur Adalat."
84 5
.lm0
It is quite clear from the authorities cited
above that the word .assessment" can bear a
very comprehensive meaning; it can comprehend
the whole procedure for ascertaining and
imposing liability upon the tax-payer. Is
there then any thing in the context of s. 297
which compels us to give to the expression
"procedure for the assessment" the narrower
meaning suggested by the learned counsel for
the appellant ? In our view, the answer to
this question must be in the negative. It
seems to us that s. 297 is meant to provide as
far as possible for all contingencies which
may arise out of the repeal of the 1922 Act.’
It deals with pending appeals, revisions, etc.
It deals with Don-completed assessments
pending at the commencement of the 1961 Act
and assessments to be made after the
commencement of the 1961 Act as a result of
returns of income filed after the commencement
of the 1961 Act. Then in cl. (d) it deals
with assessments in respect of escaped income;
in cls. (f) & (g) it deals with levy of
penalties; cl. (h) continues the effect of
elections or declarations made under the 1922
Act; cl. (i) deals with refunds; cl. (i) deals
with recovery; cl. (k) deals generally with
all agreements, notifications, orders issued
under the 1922 Act; cl. (1) continues the
notifications issued under s. 60(1) of the
1922 Act and cl. (in) guards against the
application of a longer period of limitation
prescribed under the 1961 Act to certain
applications, appeals, etc. It is hardly
believable in this context that Parliament did
not think of appeals and revisions in respect
of assessment orders already made or which it
had authorised to be made under cl. (a) of s.
297(2).
The learned counsel for the appellant submits
that Parliament had s. 6 of the General
Clauses Act in view, and therefore no express
provision was made, dealing with appeals and
revisions, etc. In our view, s. 6 of the
General Clauses Act would not apply because s.
297(2) evidences an intention to the contrary.
In Union of India v. Madan Gopal Kabra(l)
while interpreting s. 13 of the Finance Act,
1950, already extracted above, this
Court observed at p. 68 :
"Nor can Section 6 of the General Clauses Act,
1897, serve to keep alive the liability to pay
tax on the income of the year 1949-50 assuming
it to have accrued under the repeated State
law, for a "different intention" clearly
appears in Sections 2 and 13’ of the Finance
Act read together ’as indicated above." It is true that whether a different intention appears or not must depend on the language and content of s. 297(2). It seems to us, however, that by providing for so many matters mentioned above, some in accord with what would have been the result under 1) 25 I.T.R. 58. 846 s. 6 of tile General Clauses Act and some contrary to what would been the result under s. 6, Parliament has clearly evidenced an intention to the contrary. If s. 6 of the General Clauses Act is out of the way, there is no doubt that Parliament should not be credited with the intention of not providing for appeals and revisions, etc. against the assessment orders made under the 1922 Act. In this context, we must ( give the expression "proceedings for the assessment of that person " in cl. (a) of s. 297(2) a very comprehensive the-meaning At any rate, if the Income Tax (Removal of Difliculties Order, .1962, is valid, para 4 of the said order clearly covers the present case and would give jurisdiction to the Commissioner to issue the impugned notice. Relying on Jalan Trading Company (Private) Ltd. v. Mill Madoor Union(1) thelearned counsel for the appellant urges that s. 298 is void. In our view, the present case is covered by the decision of thisCourt in Commissioner of Income-tax v.Dewan Bahadur Ramgopal MillS ( 2 ) where a similar order the Taxation Laws (Part B States) (Removal of Difficulties) Order, 1950, made under s. 12 of the Finance Act, 1950, was upheld. Section 12 read as follows :
"If any difficulty arises in giving effect to
the provisions of any of the Acts, rules or
orders extended by section 3 or section I I to
any State or merged territory, the Central
Government may, by order, make such provision,
or give such direction, as appears to it to
be necessary for removing the difficulty."
S. K. Das, J., speaking for the Court
observed at p. 288
"Furthermore, the true scope and effect of
section 12
seems to be that it is for the Central
Government to determine if any difficulty of
the nature indicated in the section has
arisen and then to make such order, or give
such direction, as appears to it to be
necessary to remove the difficulty.
Parliament has left the matter to the
executive; ’but that does not make the
notification of 1956 bad. In Pandit Banarsi
Das Bhanot v. State of Madhya Pradehs(3) we
said at p. 435 : "Now, the authorities are
clear that it is not unconstitutional for the
legislature to leave it to the executive to
determine details relating to the working of
taxation laws, such as the selection of
persons on whom the tax is to be laid, the
rates at which it is to be charged in respect
of different classes of goods, and the like."
We are, therefore,
(1)[1966] 11 L.L..J. 546.
(3)9 S.T.C. 388.
(2) 41 I.T.R. 28).
847
of the view that the notification of 1956 was
validly made under section 12 and is not ultra
vires the powers conferred on the Central
Government by that section." It is true that in that case the attack was on the notification and, not on the section itself, but it seems to its that the ratio even by the Court is appropriate to cover the validity of the section itself. Furthermore, the terms of s. 37 of the Payment of Bonus Act, 1965 are different and the Bonus Act is not a taxing law. In the result the appeal fails and is dismissed with costs. R.K.P.S. Appeal dismissed.. 848