Law:

Section:

Section 33B(1), (2) and (4) of the Indian income-tax act, 1922 [corresponding to section 263(1) and (2) and section 254 of the income-tax act, 1961]-Revision-Appellate tribunal-Powers of-To made assessment for assessment years 1958-59 and 1959-60 in status of URF-Commissioner cancelled them under section 33B by passing ex parte order and directed for fresh assessment by ITO holding proper jurisdiction-Tribunal (a) upheld assumption of jurisdiction by CIT under section 33b but (b) remanded case back to cit directing its disposal afresh after giving due opportunity to assessee-High court affirmed tribunal's order except holding that tribunal was right in law in directing cit for fresh disposal in view of expiry of limitation period of two years prescribed under section 33b(2)(b)-Whether high court had legally erred in setting aside tribunal's direction to cit for fresh disposal-Held, yes Rule of construction-Casus omissus-Explained in context of section 33B(2)(b) of the indian income-tax act, 1922 Facts The assessee-firm consisted of three partners with equal shares. For the assessment years 1957-58 and 1958-59, it filed on or about 5-8-1960 voluntary returns, along with a declaration dated 8-8-1960. But the assessments were completed on 12-5-1960 by the ITO, Calcutta in the status of URF. On 2-8-1962, the Commissioner issued a show-cause notice under section 33B, which was served on 3-8-1962, fixing the hearing for 6-8-1962. He passed an exparte order on 6-8-1962 on the ground that none appeared and there was no application for adjournment. He cancelled both the assessments holding (i) that some of the partners, being minors, were not competent to enter into any partnership agreement so that the status of URF was clearly wrong ; (ii) that the account books were unreliable and were not properly examined by the ITO ; and (iii) that the ITO concerned had no territorial jurisdiction over the case which fell within the jurisdiction of some other ITO. The Commissioner, accordingly, directed the ITO, having proper jurisdiction, to make fresh assessment after examining the assessee's records in accordance with law. On appeal, the Tribunal observed that, on merits, the…

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