M.S.P. Senthil Kumar vs Commissioner of Income Tax

The following question of law has been referred by the Tribunal at the instance of the assessee :

Whether, on the facts and in the circumstances of the case, the asses-see was entitled to raise the question of the validity of the jurisdiction

assumed by the Income Tax Officer u/s 147(b) of the Income Tax Act, 1961, in the course of proceedings taken pursuant to the restoration of the

appeals to the first appellate authority by the Tribunal by its earlier order dated May 31, 1978, for the two assessment years 1972-73 and 1973-

74 ?

This question of law has been refrained by correcting the date of the earlier order as July 31, 1978. So, the question of law reframed is as

follows :

Whether, on the facts and in the circumstances of the case, the asses-see was entitled to raise the question of the validity of the jurisdiction

assumed by the Income Tax Officer u/s 147(b) in the course of proceedings taken pursuant to the restoration of the appeals to the first appellate

authority by the Tribunal by its earlier order dated July 31, 1978, for the two assessment years 1972-73 and 1973-74 ?

The question of law involved in this tax case relates to the assessment years 1972-73 and 1973-74. The assessee is a co-owner of the

agricultural estate ""Stanmore Estate"". Though the agricultural operations resulted in surplus, the borrowings were not returned by the agricultural

estate, but were lent to sister concerns at interest. The original assessment was made by the Income Tax Officer. The assessment was reopened on

the basis of audit objection raised by the internal audit party of the Income Tax Department and the assessment was made by not allowing the

interest payment made by the agricultural estate against the interest earned by the agricultural estate on the monies lent by it. The assessee filed

appeals against these orders raising two contentions. The first contention was that reopening the assessment for the years 1972-73 and 1973-74

were not valid and the second contention was that the interest payment by the agricultural estate has been validly claimed as a deduction against the

interest receipts of the agricultural estate. These contentions were negatived by the first appellate authority and the assessee appealed before the

Tribunal. The Tribunal by its order dated October 31, 1985 (sic) upheld the orders of reassessments, and the Tribunal restored the matter to the

first appellate authority. With regard to the other contention for considering whether there is any excess payment of interest by the agricultural

estate, consequent to this order of the Tribunal, the Assistant Commissioner passed orders which again came up on appeal the Appellate Assistant

Commis-sioner set aside the assessments for being done afresh according to law, in accordance with the observations of the Tribunal in order

dated July 31, 1978. Against these orders, the assessee came in appeal before the Tribunal. The Tribunal rejected the contention of the assessee

by pointing out that the earlier orders dated July 31, 1978, had become final as the assessee did not take up the matter on a reference to the High

Court and so, that question cannot be considered afresh. Against these orders of the Tribunal, the reference has arisen.

Counsel for the assessee submitted that the finding of the Tribunal that the earlier order of the Tribunal dated July 31, 1978, has become final

and the question cannot be considered afresh is not correct and that question can be considered.

Learned counsel, Mr. C. V. Rajan, appearing for the Revenue, submitted that the Tribunal upheld the jurisdiction and the order of the Tribunal

had become final and without challenging the earlier order, the subsequent order cannot be challenged.

In the decision in Seshasayee Paper and Boards Ltd. Vs. Inspecting Assistant Commissioner of Income Tax, , it has been held that (headnote) :

Even a wrong order has a finality and unless that finality is disturbed by a process known to law or by a process authorised by law, the rights of

the assessee and the Revenue will continue to be governed by the order. A decision of the Supreme Court will not automatically have the effect of

vacating the order of the Tribunal which has been statutorily made final u/s 254(4) of the Income Tax Act, 1961, and which has already been given

effect to.

In the decision in M.K. Mohammad Kunhi Vs. Commissioner of Income Tax, , it has been held that (headnote) :

Where the Appellate Tribunal remands a case the finality of views expressed by it while doing so depends on the nature of the order of remand. If

the remand is in the nature of calling for a finding and the Tribunal keeps seisin of the case it may be permissible for the Tribunal to reconsider its

views. On the other hand, if the Tribunal disposes of the appeal while passing the order of remand and another appeal comes before the Tribunal,

against the order passed after the remand, it has no power to reconsider the finding or opinion. Questions which have become final and concluded

by the remand order cannot be reopened.

It has been held in the decision in S.P. Gramophone Company Vs. Income Tax Appellate Tribunal and Others, that (headnote) :

. . . if the correctness of the remand order was not challenged through appropriate proceedings, it would not be open to review it when the matter

comes again before that authority in appeal or revision against the order passed by the authorities below in accordance with the remand order.

Following the above decisions we uphold the view taken by the Tribunal that the earlier orders of the Tribunal dated July 31, 1978, had become

final.

10 We answer this question of law in the negative and against the assessee.