SARUPCHAND HUKAMCHAND AND CO Vs. UNION OF INDIA

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) THIS appeal, by special leave of this court, is directed against the judgment and order of the High court of Judicature at Bombay dated 26/02/1953, in Appeal No. 108 of 1952. By that judgment, the Divisional bench (Chagla, C. J. and Shah, J.) declined to interfere, in Letters Patent Appeal, with the judgment of Tendolkar, J., dated 8/07/1952, in Miscellaneous Application No. 48 of 1952. In the petition which was originally filed in the High court under Art. 226 of the Constitution, a writ of mandamus was asked against the Union of India and two Income-tax Officers to compel them to give effect to the appellate order of the Appellate Assistant Commissioner of I. T. F. Range, Bombay, dated 29/04/1949. The High court in both the judgments declined the writ.

(3.) WHEN the matter reached the Income-tax Officer, he gave effect to the order of the Appellate Assistant Commissioner under s. 31 of the Act and carried the loss to the partners in their assessments for the year 1940-41, and granted a refund of Rs. 16,977-11-0 to Sir Sarupchand Hukamchand and Rs. 68,339.00 to Sri Hiralal Kalyanmal. The assessee firm, however, was not satisfied, and embarked upon voluminous correspondence beginning with a letter dated 10/09/1949, by which it claimed that inasmuch as it had been shown to have incurred a loss in the first of the three assessment years, it could not for that year be treated as a registered firm, and that as an unregistered firm it was entitled therefore to carry forward the loss to the subsequent years. In addition to the correspondence, the assessee firm moved in turn the Income-tax Officer as well as the Appellate Assistant Commissioner respectively under s. 35 of the Act for rectification of the assessment to the same effect. The officers of the Department at both levels declined to interfere, and stated that the direction of the Income-tax Officer under s. 23(5)(b) was not appealable, and had become final. They also pointed out that the period during which the original order of the Income-tax Officer could be rectified (viz., 4 years) had already run out, and that the petitions were accordingly out of time. The assessee firm moved the Commissioner as well as the central Board of Revenue, but failed to get the desired order.