1968 PLP 277 (PTD)

1951‑52 Rs. 13,440‑11‑0 1952‑53 Rs. 8,254‑6-0 There is no appeal against the order under section 35 of the Income‑tax Act. The appellants therefore applied under section 33‑A to the Commissioner of Income‑tax for revision of these orders. We were told at the hearing that they were not heard by the Commissioner. They were informed by the Income‑tax Officer by a letter dated April 9, 1956, that their applications were rejected. As there was no further remedy, the appellants filed four petitions under Article 226 of the Constitution, challenging the orders of the Income‑tax Officer and the Commissioner of Income‑tax on the ground that they were opposed to the principles of natural justice. Before the High Court it was contended by the department that there was a patent failure on the part of the Income‑tax Officer to add penal interest to the tax, which he could rectify under section 35 as an error apparent from the record, This contention of the department was accepted and the High Court dismissed the petitions because in its opinion there was no substantial but a "procedural" defect and the failure to issue the notice caused no prejudice because the result would have been the same even if the notice had been issued. In our opinion, and we say it respectfully, the High Court was in error in holding that there was no breach of the principles of natural justice in this case and the High Court ought to have quashed the orders. Section 35 which deals with the rectification of mistakes provides that the Income‑tax Officer (among other officers) may at any time within four years from the date of any assess ment order, etc., passed by him, on his own motion rectify any mistake apparent, from the record of the assessment and shall within the like period rectify any mistake which has been brought to his notice by an assessee. One of the provisos says that no such rectification shall be made, having the effect of enhancing an assessment or reducing the refund unless the Income‑tax Officer has given notice to the assessee of his intention so to do and has allowed him a reasonable opportunity of being heard. Section 18‑A which was inserted by the Income‑tax (Amend ment) Act, 1944 (11 of 1944), provides for advance payment of tax by an assessee. Subsection (8) of that section says that where, on making the regular assessment, the Income‑tax Officer finds that no payment of advance tax has been made in accordance with previous provisions of that section, interest calculated in the manner laid down in subsection (6) shall be added to the tax as determined on the basis of the regular assessment. Subsection (6) says that if in any year, an assessee has paid advance tax under subsection (2) or (3) on the basis of his own estimate and the tax so paid is less than eighty percent. of tax determined on the basis of the regular assess ment, so far as such tax relates to income to which the provisions of section 18 do not apply, and if it is not due to any variation in the rate of tax, simple interest at the rate of six percent. per annum from the 1st day of January in the year in which the tax was paid up to the date of the said regular assessment, is payable by the assessee on the amount by which the tax paid falls short of the eighty percent. A number of provisos are added to subsection (6) and the fifth proviso says : "Provided further that in such cases and under such circum stances as may be prescribed, the Income‑tax Officer may reduce or waive the interest payable by the assessee." "Prescribed" means prescribed by rules made under the Act and rule 48 of the Indian Income‑tax Rules, 1922 provides for the different cases and circumstances as follows: "

48. The Income‑tax Officer may reduce or waive the interest payable under section 18‑A in the cases and under the circumstances mentioned below, namely :‑ (1) Where the relevant assessment is completed more than one year after the submission of the return, the delay in assess ment not being attributable to the assessee. (2) Where a person is under section 43 deemed to be an agent of another person and is assessed upon the latter's income. (3) Where the assessee has income from an unregistered firm to which the provisions of clause (h) of subsection (5) of sec tion 23 are applied. (4) Where the `previous year' is the financial year or any year ending near about the close of the financial year and large profits are made after the 15th of March, in circum stances which could not be foreseen. (5) Any case in which the Inspecting Assistant Commis sioner considers that the circumstances are such that a reduction or waiver of the interest payable under sec tion 18‑A(6) is justified." It will appear from this that the action under section 35 may be taken in favour of the taxpayer without any notice to him but if the action has the effect of enhancing an assess ment or reducing the refund, the Income‑tax Officer, acting under section 35, must send a notice to the assessee and give him a reasonable opportunity of being heard. This admittedly was not done in this case. It is urged by the learned counsel for the department that this proviso cannot apply to a case of penal interest leviable under subsection (8) to section 18‑A because that subsection is mandatory, that the fifth proviso to section 18‑A(6) does not override the mandatory character of the eighth subsection and that the writ jurisdiction was rightly not exercised by the High Court in favour of the appellants because even if notice had been given to them, penal interest. would have had to be added in any event since the Income‑tax Officer had no option. There is no doubt that the eighth subsection applied to the assessments of the two appellants. It is also indisputable that as they had made no advance payment of tax the Income-tax Officer was obliged under that subsection to calculate the interest in the manner laid down in subsection (6) and add it to the tax. It has now been ruled by this court recently in Gursahai Saigal v. Commissioner of Income‑tax ((1963) 48 I T R (S C) 1), that subsection (6) can be read with subsection (8) in spite of certain difficulties of language in applying the provisions of the former subsection to the latter. This court points out that the intention of section 18‑A is to charge interest whenever the taxpayer is in default in making an advance payment of tax, and that subsection (6) must be read mutatis mutandis so as to advance the clear intention underlying subsection (8) and not to defeat that intention. This being established, the question is whether subsection (6) must be read with all its provisos. The argument here is that according to the terms of subsection (8) only the "manner" of calculation can be taken from subsection (6) and the fifth proviso does not lay down any "manner of calculation". The fifth proviso says that in certain circumstances and in certain cases the Income-tax Officer may reduce or waive interest payable by the assessee. The proviso operates after the amount of tax is determined and cuts across the subsection. The Income‑tax Officer, though empowered to reduce or waive the interest payable by the assessee, is controlled by the rules which prescribe the circumstances under which and the cases in which 'he can take that action. The relevant rule has been quoted above. All the sub‑rules are equally applicable to subsection (6) and subsec tion (8). Sub‑rule (5) of that rule is general in its terms and it lays down that in a case in which the Inspecting Assistant Commis sioner considers that the circumstances are such that a reduction or waiver of interest is justified the Income‑tax Officer may reduce or waive the interest payable. Such a case may be where a part of the tax is paid and also a case where no tax is paid. This right of an assessee to obtain a decision of the Inspecting Assistant Commissioner in either case is denied to the assessee if he is not sent a notice and is not afforded a hearing as required by section 35 (proviso). It is contended on the strength of a ruling of the Bombay High Court in Lata Mangeshkar v. Union of India ((1959) 36 I T R 527) that the addition of interest being compulsory under subsection (8) the fifth proviso under subsection (6) which invests the Income‑tax Officer with discretion is not applicable. It is also stated in that case that subsection (8) only requires that the calculation should be in accordance with subsection (6) and the fifth proviso to subsection (6) is not concerned with calculation and cannot be applied to cases arising under subsection (8). We do not agree that the fifth proviso to subsection (6) does not apply to a case arising under subsection (8). Subsection (6) without reserve is, expressly made applicable and this court in Gursahai Saigal's case has ruled that in cases arising under sub section (8) the sixth subsection is to be applied mutatis mutandis. If subsection (6) is applicable the discretion which is contemplated under the fifth proviso read with rule 48 is open not only in cases arising under subsections (2) and (3) of section 18‑A but also in cases arising under subsection (8). There is nothing to show that in applying subsection (6) any of the provisos are to be left out. The eighth subsection no doubt uses the word "shall" but in the context of subsec tion (6) and the, fifth proviso the word can only be read as mandatory if the relief under the proviso is not given. The circumstances which entitle an Income‑tax Officer to give relief in cases arising under subsections (2) and (3) may also be circumstances justifying relief in cases arising under subsec tion (8). It was ruled in Income‑tax Officer, Madurai v. M. R. Vidyasagar ((1962) 44 I T R 732) that the fifth proviso and rule 48 were intended to relieve against the rigour of the inflexible rule originally enacted in subsection (6). The effect of the introduction of the proviso mutatis mutandis affects subsection (8) as well. All the sub‑rules of rule 48 apply equally to a case of part payment and a case of no payment of advance tax. There may be as good a justification for not paying the advance tax wholly as for not paying it partly. The present case is an apt illustration because the order of the High Court was passed in 1947 and effect to it was given by the Tribunal in 1950. The compromise with the Income‑tax department in relation to the back years took place in 1952 and the assess ments for 1947‑48 and 1949‑50 were only completed on the last day of March 1953. It is thus apparent that for the assessment years 1951‑52 and 1952‑53 the appellants might, if opportunity had been given to them, have convinced the Inspecting Assistant Commissioner that they had good grounds for not paying the advance tax because their cases were still in the process of consideration and settlement. No doubt, the Inspecting Assistant Commissioner might have disagreed with their claim but the opportunity to bring the cases to the notice of the Inspecting Assistant Commissioner was denied to the appellants if they did not receive a notice and were not heard against the express direction in the proviso to section

35. In our opinion there was a clear breach of the principles of natural justice in the present case. It is contended that this is not a case in which we should reverse the order of the High Court because the grant of writ is discretionary and if the High Court declined to give a writ because in its opinion penal interest was payable, we should not take a contrary view and grant the writ here. The question is not whether penal interest was payable or not but whether an opportunity had to be given to the appellants as required by the proviso to section 35 to show cause against the demand for penal interest. If this opportunity was not given the High Court should have acted to rectify that error. The authorities acting under the Indian Income‑tax Act have to act judicially and one of the requirements of judicial action is to give a fair hearing to a person before deciding against him. In a recent case of the House of Lords, Commissioners of Inland Revenue v. Hood Barrs ((1961) 39 Tax Cas. 683) it was held that such proceedings were quasi‑judicial and if the section required a notice and notice was not given there was a breach of the principles of natural justice and certiorari lay to quash the order made. Lord Reid at page 706 observed: "I do not think it necessary in this case to decide what degree of formality, if any, is required in proceedings before General Commissioners, for this at least is clear : no tribunal, however informal, can be entitled to reach a decision against any person without giving to him some proper opportunity to put forward his case. It fray wall be that these Commis sioners acted in good faith and with the best intentions, but that is not enough." A similar view was also expressed by this Court in Sinha Govindji v. Deputy Chief Controller of Imports and Exports ((1962) 1 S C R 540). It is more so in this case where the proviso to section 35 itself makes it incumbent upon the Income‑tax Officer to give notice and a hearing to an assessee when the effect of the rectification would be the enhancement of the assessment. The learned counsel for the department raised the forlorn argument that the addition of penal interest is not enhance ment of assessment as stated in the proviso. We do not see what else it could be. The word "assessment" is used in the proviso not as an equivalent of the tax calculated at the rate given in the Finance Act but the total amount which the assessee is required to pay. The proviso applies whenever the effect of the order is to touch the pocket of the assesse ; and in our opinion this was such a case. In the result the appeals are allowed. A writ of certiorari will issue and the order of the Income‑tax Officer will be quashed. The Income‑tax Officer will, however, be free to take such action as may be open to him. In the circumstances of the case the parties will bear their costs here and in the High Court. Appeals allowed.