Law: Income Tax Act, 1922

Section: 16,15B(1),33,35,23,23A,24,25,25A,26(2),2 6A,28,44E(6),44(F)(5),46(1),48,49,30,31

Income-tax Act, 1922 -- Sections 15B(4), 16, 23, 30(1), 31, 33, 35 -- Rectification of mistake -- Order passed under Section 35 -- Whether appealable before Appellate Assistant Commissioner under Section 30(1) -- Held yes -- Provisions of Section 16 dealing with exemptions, exclusions and inclusions for the purpose of determination of total income -- Sub-section (4) providing such exemptions, etc. incorporated in Section 15B -- Whether renders the provision of this sub-section inoperative -- Held no -- Rectification of mistake, order of, under S. 35 is in effect order made under Section 23 and is therefore appealable under Section 30(1) -- Provision could more appropriately have been incorporated in Section 16 -- However, inclusion of provision in Section 15-B instead of Section 16 does not render provisions ineffective -- JUDGMENT The judgment of the court was delivered by NOORUL ARIFIN J.---By this judgment, we will answer two References, No. 36 of 1968 and No. 43 of 1968. Both the references relate to the assessment to income tax of two partners of Souvenir Tobacco Co., namely, Hassan Ali and Badruddin, and are in respect of the assessment years 1959-60 and 1960-61. The questions of law stated by the Income Tax Appellate Tribunal are identical in both the references and read as follows:-- (1) Whether in the facts and circumstances of the case the Tribunal is right in holding that under Section 33 of the Income Tax Act no appeal lies against an order under Section 35 of the Act? (2) Whether the Tribunal is right in holding that "total income" includes income exempt under Section 15B(1) of the Income Tax Act for purposes of all the provisions of the Income Tax Act, 1922? The first question relates to the assessment year 1959-60, and the second question to the assessment year 1960-61. 2. While completing the assessment of the firm of which Hasan Ali and Badruddin were partners, the Income Tax Officer brought in, for the determination of the total income of the firm for the assessment year 1959-60, the profits and gains exempted under section 15B(1) of the Income Tax act, 1922. But, when the Income tax Officer came to assess the individual partners of the firm,…

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