SITALPORE COLLIERY CONCERN LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner in this case is the Sitalpur Coal Concern Ltd. It has a colliery business. The petitioner filed its return for the assessment year 1948-1949 before the Income-tax Officer, Company's District II, Calcutta. There was an item with regard to the quantity of coal consumed under the heading, "Boiler and Colliery consumption account". According to the petitioner it had claimed a total consumption of 21.5 p.c. of the total raisings on this heading. According to the respondents, about 26 p.c. was claimed. On or about the 13th February, 1953, the assessment order was made and only 15 p.c. was allowed under this heading. It is stated on behalf of the respondents that the Company had kept no accounts of daily consumption, but produced a monthly account without any details, and the claim for consumption under this heading was out of proportion to the amounts that were found in the workings of the neighbouring collieries. On or about the 14th March, 1953, the petitioner filed an appeal against the assessment order, before the Assistant Commissioner of Income-tax, who fixed a hearing on the 10th February, 1954. Sometime before the hearing of the appeal, the petitioner applied for an adjournment till the 1st week of March, 1954, inter alia on the ground that the petitioner was expecting certain formation and documents from its mines. This application was rejected on the ground that the Company had ample time for nearly a whole year to procure the necessary information from its colliery, and an adjournment was not justified. On the 10th February, 1954, nobody appeared on behalf of the petitioner and the appeal was accordingly heard ex parte and was dismissed. As against this order the petitioner had several courses open to him. Ono was to prefer an appeal under Section 30 of the Indian Income-tax Act, (hereinafter referred to as the 'Act') limitation for which is 30 days. Alternatively, it could proceed under Section 33-A which gives power of revision to the Commissioner. In fact, the petitioner made an application under Section 33-A (2) of the Act. The limitation for such an application is one year. Since this has been the subject-matter of this application I set out below the relevant part thereof.

(2.) On the 2nd July, 1955, the Commissioner passed an order declining to interfere. On 29th March, 1956, this rule was issued upon the respondents to show cause why an order in the nature of a Writ of Mandamus should not be made directing the respondent-Commissioner of Income-tax to deal with the revision filed by the petitioner in accordance with law by giving notice to the petitioner before fixing the date of hearing and giving a hearing to the petitioner before passing any order, and/ or why the notice dated 23rd of August, 1955, and the order dated the 2nd September, 1955, should not be set aside or cancelled. The notice dated the 23rd August, 1954, is a notice of demand under Section 29 of the Act and the order dated the 2nd September, 1955, is the order of the Commissioner declining to interfere.

(3.) The short point in this application is as to whether under Section 33-A (2), the Commissioner can decide a case only after hearing the party. In other words, whether it is incumbent upon the Commissioner to hear the party before making an order. Mr. Dutt appearing on behalf of the petitioner argues that the Commissioner acting under Section 33-A (2) is a Court and, therefore, was bound to hear the party, and in any event a decision without hearing a party is contrary to the rules of natural justice. Mr. Dutt points out Section 37 of the Act, under which the Commissioner has been given the power of a Court under the Code of Civil Procedure when trying a suit in respect of certain matters, e.g., enforcing the attendance of any person and examining him on oath, discovery and inspection, etc. He argues that if the Commissioner is a Court, then it is unthinkable that he can decide an application made by a party without giving a hearing. Mr. Dutt has referred to the Supreme Court decision in Surajmall Mohta and Co. v. A. V. Visvanatha Sastri. There, Mahajan, C. J., was dealing with Section 34 of the Act and he said that under the provisions of Section 37 of the Act, the proceedings before the Income-tax Officer arc judicial proceedings and all the incidents of such judicial proceedings have to be observed before the result is arrived at.