SEWA SINGH GILL S Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THIS is a petition under Arts. 226 and 227 of the Constitution of India, praying for (i) writ, order or direction in the nature of mandamus or otherwise directing the respondents to revise the assessment order for 1944 -45 assessment year in consequence of the findings in the assessment order of February, 1954, and (ii) writ, order or direction in the nature of mandamus or otherwise directing the respondents to refund the sum of Rs. 15,224 plus interest thereon since 1945. The petitioner has impleaded the ITO, B/III District, New Delhi, the CIT, Delhi, and the Secretary, CBDT, New Delhi, as respondents in this petition. The petitioner in his petition states that during the financial years 1943 -44 and 1944 -45, the petitioner derived his income mostly from contracts and he undertook the contract of construction of W. A. C. quarters at Lytton Road, New Delhi ; the work for constrution of the said quarters was stated on November 4, 1943, and was completed some time in May, 1944 ; during the time when the work was in progress, the petitioner received part of the payments in the financial year 1943 -44, relevant to the asst. year 1944 -45, and the remaining in the financial year 1944 -45, relevant to the asst. year 1945 -46 ; on January 25, 1945, the ITO, Contractor Circle, New Delhi, made an assessment of the petitioner for the asst. year 1944 - 45, but as some of the income was relevant to construction work which was not completed, the said assessment was made on tentative basis subject to adjustment in the year when the construction was completed ; in pursuance of the aforesaid order a sum of Rs. 20,348 -5 -0 was paid as tax in March, 1945, by the petitioner ; against this order, the petitioner preferred appeals before the AAC and the Tribunal, but the same were dismissed. The only point raised by the petitioner in these appeals was that the rate of 18per cent applied by the ITO was excessive and according to the petitioner's estimate, the rate of profit should be 10per cent only.

(2.) THE petitioner, thereafter, states that the contracts had been completed and after that the final assessment in respect of the said contracts carried out in the financial years 1943 -44 and 1944 -45 was in the first instance made in February, 1949, by the ITO, fixing the petitioner's total income at Rs. 55,403, and on appeal, the AAC, by his order dated June 27, 1950, quashed the aforesaid order and directed the ITO to make a fresh assessment. According to the petitioner, thereafter he produced his account books and other relevant documents before the ITO and the said ITO some time in February, 1954, completed the fresh assessment, according to which the petitioner's profit from the entire contract work was found to be about Rs. 4,119 and, according to the ITO, a part of this profit was accountable in 1944 -45 assessment. According to the petitioner, the ITO apportioned the said profit of Rs. 4,119 as follows :

(3.) BEFORE I consider the contention of the petitioner in this writ petition, it is desirable to mention certain facts as borne out by the records. As I pointed out already, for the asst. year 1944 - 45, the ITO passed an order of assessment purporting to be under S. 23(2) of the Indian IT Act, 1922, on January 25, 1945. The relevant portion of the assessment order is as follows :