P L D 1969 Dacca 681 (PLP)

MAKSUM‑UL‑HAKIM, J.‑This application under Article 98(2) of the Constitution was filed calling in question the order dated 3‑6‑1965 passed by the Commissioner of Income‑tax dismissing the application for revision filed by the petitioner in connection with the assessment on him for the assessment year 1957‑

58. The facts giving rise to this application are as follows: ‑ The petitioner was assessed for the assessment year 1957‑58 on an income of Rs. 24,261 against his return showing an income of Rs. 2,

084. The petitioner thereafter filed a revisional application under section 33‑A of the Income‑tax Act challenging the competency of the assessment on various grounds including ore of limitation and jurisdiction for the same. The Commissioner of Income‑tax by his order, dated 30‑11‑1963 passed in Revision Case No. 105 of 1962‑63 annulled the assessment and directed the Income‑tax Officer to make a fresh assessment according to law. The original order in this regard was placed before us and is as follows: ‑ "Order under section 33‑A(2) of the Income‑tax Act. In this case assessment was made on 22‑6‑

62. In view of the Supreme Court's decision in the case of Nagina Silk Mill v. Income‑tax Officer, A‑ Ward, Lyallpur 1963 P T D 633, this assessment must be held to have been made without jurisdic tion. The assessment is annulled and the Income‑tax Officer is directed to make a fresh assessment according to law." Thereafter on 16‑12‑1963 the Income‑tax Officer re‑assessed the petitioner on identical income by an assessment order. The petitioner filed another revisional application against this re assessment on 28‑12‑1964 wherein the legality and the jurisdiction of such re‑assessment was challenged. It was contended by the petitioner in that application which is marked Annexure `D' of this petition that the assessment was barred by limitation as a period of more than 4 years had already elapsed from the expiry of the year when the income was first assessable. It was further contended that as the assessment was annulled by the Com missioner of Income‑tax on a previous revisional application the Income‑tax Officer had no jurisdiction to re‑assess the petitioner in respect of the same year. After the receipt of this revisional application a show‑cause notice was issued on the petitioner directing him to show cause as to why his revisional application should not be rejected as barred by limitation as the same was filed after the expiry of one year from the date of the assessment order itself. It is to be noticed that the assessment order in this particular case was passed on 16‑12‑1963 and the revisional application was filed on 28‑12‑1964. On receipt of this show‑cause notice the petitioner explained the position and pointed out that the period of one year is to be calculated from the date of the communica tion and receipt of the order of assessment. It was further pointed out that as the order of assessment was communicated to the petitioner on a date later than 28‑12‑63, and he actually came to know, of it in the middle of January 1964, the revisional application was clearly within time. It was further contended by the petitioner that he had no knowledge of the order of assessment either actual or constructive before 28‑12‑1963. The respondent No. 1, however, was not satisfied with this explanation and he by his order, dated 3rd June 1965 rejected the revisional application filed by the petitioner on the ground of limitation. The order passed by the respondent No. 1 in this matter is made Annexure `A' of this petition. It is pointed out in this order that the assessment was made on 1612‑1963 and the petitioner was required to file revisional application within one year from that date and as the same was filed on 28‑12‑64, that is to say, 12 days after the expiry of the period of one year, the same was bound to be treated as barred by limitation. It appears further that the representative of the petitioner contended that the delay should be condoned in view of the fact that an important question of law was involved in the case which was, however, not accepted. It is against this order of the respondent that the present writ petition has been filed. Mr. Rafiqul Huq appearing for the petitioner has first contended that the order passed by the respondent No. 1 holding that the revisional application of the petitioner is barred by limitation is clearly illegal in view of the fact that the words used in section 33‑A (2) of the Income‑tax Act to the effect "the date of the order" clearly means "the date of the communication of the order". It was further contended by the learned Advocate for the petitioner that the section clearly contemplates an order which is brought to the knowledge of the assessee and not an order which is made in the secrecy of the office and kept without the knowledge of the assessee. Mr. Afzalul Haque appearing for the respondent has contended that the word used in the section is `the date of the order' which clearly means the date when the order is passed or made and there is no reason to import further words in the statute itself which is not available in the section. Subsection (2) of section 33‑A of the Income‑tax Act is in these words "(2). The Commissioner may, on application by an assessee for revision of an order under this Act passed by any authority subordinate to the Commissioner, made within one year from the date of the order or within such further period as the Commissioner may consider fit to allow on being satisfied that the assessee was prevented by sufficient cause from making the application within that period, call for the record of the proceeding in which such order was passed, and on receipt of the record may make such inquiry or cause such inquiry to be made, and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit." Reading the section as it is, it appears that a considerable period of time has been given to an assessee for filing the said revisional application and the word used in the statute is the date of the order. It does not say the date of the knowledge of the order. In view of the plain words used in the statute, we are of the opinion that there is no scope for holding that the section contemplated that the period of limitation should begin to run from the date when the order was communicated. It is well -settled that when the language of section is plain then it should be understood in that meaning without importing any consideration of reasonableness or otherwise. Maxwell in his Interpretation of Statutes, 9th Edition, at page 3, states as follows :‑ "The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and, otherwise, in their ordinary meaning; ." Again at page 4 thereof it is stated "When once the meaning is plain, it is not the province of the Court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words." A reference may also be made to the observation made by their Lordships in the case of London Brick Co. v. Robinson (1943 A C 341), where their Lordships declined to vary the words which were not in themselves obscure or ambiguous only to avoid strange conclusions and surprising results. Mr. Rafiqul Huq has relied on two cases of Indian Jurisdiction to support his contention. These are of O. A. O. A. M. Muthiah Chettiar v. Commissioner of Income‑tax, Madras (19 I T R 402) and Petland Bulakhidas Mills Co. Ltd. v. Raj Singh (37 I T R 264) wherein it has been held that in construing the words of this section it should be held that the period of limitation begins to run from the date when the order is served on the assessee or when the assessee could reasonably come to know of it. For the reasons already given we are not in a position to accept those observations in those cases. The same question was, mooted before this Court in the case of Eastern Textile Mills Ltd v. Commissioner of Income‑tax and another (17 D L R 622). The same view which we are taking now were also taken in that case Sattar, J. with whom Salahuddin, J. concurred, observed as follows: ‑ "In our view, the period of limitation under section 33‑A (2) is to be counted from the date when the order is actually made: and not the date when the assessee comes to know of the: order or has either actual or constructive notice of the order . . . . . . ." In view of the above, we are not in a position to accept the first contention raised by the learned Advocate for the petitioner and we are, therefore, of opinion that the rejection of the revisional application by the respondent No. 1 on the ground of bar of limitation is not contrary to law. The petitioner has secondly argued that the assessment made on him by the respondent No. 2 is wholly without jurisdiction in view of the fact that the same was annulled on an earlier occasion on the ground of limitation. It is further contended that as the assessment order was made beyond four years after the expiry of the year when the income was made assessable for the first time, as such in view of the ratio laid down by their Lordships of the Supreme Court in the case of Nagina Silk Milt v. Income‑tax Officer (P L D 1963 S C 322), the assessment was without jurisdiction. It is to be seen that the year of accounting is 1956‑57 (1363 B.S.) and he was assessed to income‑tax on 22‑6‑

62. The respondent No. 1 by his order dated 30‑11‑63 annulled the assessment and directed the Income‑tax Officer to make a fresh assessment according to law. Fresh assessment was actually made by respondent No. 2 on 16‑12‑

63. It has to be noticed that after the decision of the Supreme Court of Pakistan in the case of Nagina Silk Mill as mentioned earlier the Legislature by Finance Act XVI of 1963 added subsection (2‑B) of section 34 which after the said addition stood as follows: ‑ "34 (2‑B). Notwithstanding anything in subsections (1) and (2) limiting the time within which any notice may be issued or any assessment or re‑assessment made or any action taken, such notice may be issued, assessment or re‑assessment made or action taken as respects the assessment (including re assessment) for any year ending at any time between the thirty‑first day of March 1955, and the thirtieth day of June 1959 (both days inclusive) on or before the thirty‑first day of December 1963." By subsection (14) of section 6 of the Finance Act V of 1964 this subsection (2‑B), referred to above, was further amended. Subsection (14) of section 6 of the Finance Act of 1964 runs as 'follows: ‑ "(14). In section 34 (a)‑ In subsection (2‑B), for the figures "1963" the figures "1964" shall be substituted and the said subsection, as so amended, shall be deemed to have been inserted on the first day of April 1955 and no assessment or re assessment or any order made, proceeding taken or notice issued at any time after the said day shall be called in question in any Court, tribunal or other authority merely on the ground that, at the time the assessment or re‑assessment or order was made, proceeding taken or notice issued, as the case may be, the time within which the assessment or re assessment or order should have been made or proceeding taken or notice issued under the Act, as in force before its amendment, had expired." It will appear from this amendment of 1964 that in subsection (2‑B) the word "1963" was replaced by the word "1964". Apart from that it was further laid down by subsection (14) of section 6 that the said subsection (2‑B) of section 34 was to be deemed to have been inserted in the statute book on the 1st day of April 1955 and that no assessment or re assessment or any order made before December 1964, was to be called in question or challenged on the ground of limitation. It is obvious therefore that the Legislature amended section 34 (2‑B) of the Income‑tax Act to cover all these cases relating to `bar of limitation which were earlier affected by the decision of the Supreme Court in Nagina Silk Mill's case. In this case the assessment was made before December 1964, that is to say, on' 16‑12‑63 and the assessment was in respect of a period after 1st March 1955 which is actually with regard to the accounting year 1956‑57 (1963 B. S.). It is obvious therefore that the plea of bar of limitation is no longer available to the petitioner. Mr. Rafiqul Huq, the learned Advocate for the petitioner has relied on the case of Bengal River Service Co. v. Income‑tax Officer and another (P L D 1965 Dacca 217) to support his contention that an assessment which has been annulled and with regard to which assessment was made after the expiry of four years from the end of the year in which the income was first assessable could not be assessed as the same was already barred by limitation. We are of the opinion that this decision is of no assistance to the petitioner in view of the fact that the assessment made in the Finance Act of 1964 in section 6(14) was not considered or raised in that case. Sattar, J. with whom Sayem, J. concurred, observed at paragraph 8 as follows: ‑ "It has come to our notice that subsection (2‑B) of section 34 has been further amended by the Finance Act, 1964. It came into force during the pendency of these petitions. As no point with regard to the effect of the said amendment on the cases of the petitioners has been raised by the respondents in the affidavits‑in‑opposition or by filing further affidavits, we have found it unnecessary to decide the same in these cases. We must not be understood to have expressed any opinion as to they right of the Income‑tax Officer to reopen cases in respect of which assessment was annulled by the Appellate Authorities on the authority of the amendment of 1963. We must not also be understood to have considered the effect of the amendment of subsection (2‑B) by the Finance Act of 1964 on the orders of assessment, if any, passed in regard to these petitioners after the issue of the impugned notice. We have decided these cases on the basis of the law as it stood on the dates on which the impugned notices were issued without taking into account the effect of the amendment of subsection (2‑B) by Finance Act, 1964." It is obvious therefore that subsection (14) of section 6 of the Finance Act, 1964, was not considered in the decision referred to by the learned Advocate. Moreover, the order of annulment in the present case was of the nature wherein the Commissioner of Income‑tax, respondent No. 1, sent back the matter to the Income -tax Officer, for assessing the income of the petitioner in, accordance with law. The view we are taking now in this case was also taken in the case of Messrs Hassan Ali Saraf v. Commissioner of Income‑tax (P L D 1966 Lah. 241). In view of the above observation we find that there is no substance in the second point raised by the learned Advocate for the petitioner. These are the only points that were raised in this writ application which we have already found above are without substance. The result, therefore, is that the Rule is discharged with costs which is assessed at 15 (fifteen) gold mohurs. SIDDIKY, C. J.‑I agree. S Q. Rule discharged.