D. K. Seth J.
The appellants filed Writ Petition No. 714 of 1996 (see : [2003]262ITR243(Cal) ), challenging the notices issued under section 154 of the Income Tax Act, 1961 (hereinafter referred to as the Act), seeking to rectify summary assessment made under section 143(1)(a) of the Act for the assessment years 1990-91, 1992-93, 1993-94 and 1994-95. In the writ petition, the assessment for the year 1995-96 under section 143(1)(a) of the Act was also challenged. The petitioner had claimed allowable deduction in respect of the contingency reserve fund in the respective returns. Up to the assessment year 1994-95, the returns were accepted, allowing deduction in respect of the appropriation to contingency reserve fund and intimation under section 143(1)(a) was issued. Subsequently, notice under section 143(2) was issued. Regular assessment under section 143(3) was completed disallowing the appropriation to contingency reserve for the assessment years 1990-91 and 1992-93. Whereas regular assessment in respect of the assessment years 1993-94 and 1994-95 pursuant to the notice under section 143(2) was pending. In respect of each of these four assessment years, notices under section 154 of the Act were also issued. So far as the assessment year 1995-96 is concerned, in the assessment under section 143(1)(a), the appropriation to contingency reserve was disallowed without the aid of sections 143(2) and 143(3) or section 154. In the writ petition, the appellants had prayed for the relief in respect of the assessment year 1995-96 as well along with the other four assessment years in relation to which the issuance of the notices under section 154 was challenged as without jurisdiction. The learned Single Judge by the decision dated 22-4-2003 (see : [2003]262ITR243(Cal) ), was pleased to grant relief to the appellants in respect of the assessment years 1990-91, 1992-93, 1993-94 and 1994-95 by quashing the respective notices under section 154, seeking to rectify the intimation under section 143(1)(a), while permitting the process of regular assessment under section 143(3) in respect of the assessment years 1993-94 and 1994-95 and the appeal in respect of the assessment years 1990-91 and 1992-93. No relief, however, was allowed in respect of the assessment year 1995-96.
The appellants preferred this appeal against the said judgment dated 22-4-2003 (see : [2003]262ITR243(Cal) ), passed in W. P. No. 714 of 1996, so far as it omitted to decide the question of adjustment made under section 143(1)(a) of the Act in respect of the assessment year 1995-96 since intimated under section 143(1)(a) on 18-3-1996. Admittedly, this appropriation to contingency fund was disallowed in view of the decision in Associated Power Co. Ltd. v. CIT : [1996]218ITR195(SC) . The main contention of Dr. Debiprosad Pal, senior counsel, appearing on behalf of the appellants, was that the assessment is to be made on the basis of the law applicable on the date of filing the return. In the assessment intimated under section 143(1)(a) while disallowing the appropriation to contingency reserve, the assessing officer had made an addition under section 143(1A), which is penal in nature and cannot be imposed when the return at the time of filing was not false or incorrect. According to him, though the decision in the case of Associated Power Co. Ltd. : [1996]218ITR195(SC) was rendered on 28-11-1995, it was not available or known to the appellant until this decision was published in Taxman on 27-1-1996 (1996) 84 Taxman 355 (SC), whereas the return was submitted on 30-11-1995, when it was not possible for the assessee to have any information with regard to the decision. Therefore, on 30-11-1995, the return was filed by the assessee in accordance with the law applicable on that date. Therefore, the intimation under section 143(1)(a) is without jurisdiction.
This contention was sought to be resisted by Mr. S. K. Kapoor, Additional Solicitor General, appearing for the respondents, that the law as it stood on 30-11-1995, was the law laid down in Associated Power Co. Ltd. : [1996]218ITR195(SC) . It is immaterial as to when it is published of when it came to the knowledge of a particular assessee. The law declared becomes enforceable on the day as soon as declared by the court. It is not dependent on the knowledge or information of a particular assessee. He secondly contends that the assessment is subject to appeal. The assessment made cannot be said to be without jurisdiction. Therefore, the writ is not maintainable.
Dr. Pal had relied on the decision in Samtel Color Ltd. v. Union of India (2002) 258 ITR 1 and Asst. CIT v. J. K. Synthetics Ltd. : [2001]251ITR200(SC) ; whereas Mr. Kapoor relied on Associated Power Co. Ltd. v. CIT : [1996]218ITR195(SC) and CIT v. Hindustan Electro Graphites Ltd. : [2000]243ITR48(SC) and contended that Hindustan Electro Graphites Ltd. : [2000]243ITR48(SC) deals with section 143(1A) as well.
The question of maintainability was gone into by the learned Single Judge. The learned Single Judge was pleased to observe that the writ was maintainable since the notices involved the question of jurisdiction. The maintainability was considered in respect of the other four assessment years where notices under section 154 were issued and the jurisdiction to issue such notices was involved. No such notice, however, was issued in respect of the assessment year 1995-96. However, the question of maintainability of the writ petition in respect of this particular assessment year can very well be examined. Admittedly, the remedy by way of appeal is available against the assessment intimated under section 143(1)(a). Admittedly, the assessing officer has jurisdiction to allow or disallow appropriation to contingency fund rightly or wrongly. Therefore, though the question involved in the assessment year 1995-96 was included in the writ petition and the writ petition in respect of the earlier four assessment years was held to be maintainable, it can still be contended that the writ petition was not maintainable in respect of the assessment year 1995-96. Thus, the omission to consider the question raised in respect of the assessment year 1995-96, in the judgment under appeal, cannot be said to suffer from any infirmity.
Be that as it may, this question can very well be raised in the appeal, if preferred. That apart, the decision in Associated Power Co. Ltd. (1996) (supra) was rendered by the Apex Court on 28-11-1995, holding that the appropriation to contingency reserve was not a business expenditure allowable for deduction. Therefore, the law as it stood on the day of filing the return, namely, on 30-11-1995, was the law as declared in Associated Power Co. Ltd. : [1996]218ITR195(SC) on 28-11-1995. The law declared by the court becomes the law as soon as it is declared. Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts. The declaration of law is complete as soon as the judgment is pronounced. Immediately with the declaration of law the principles of article 141 are activated. The binding force of the law declared is not dependent on the publication in any report or on the knowledge or information of any individual assessee. Therefore, the disallowance of deduction of appropriation to contingency reserve in respect of the return submitted after the decision in Associated Power Co. Ltd. (supra) cannot be said to be without jurisdiction to maintain the writ petition.
At the same time, it was not a question of addition under section 143(1A) of a tax in the nature of penalty. In fact, this appropriation to contingency reserve was disclosed in the return but claimed as an allowable deduction which was disallowed and adjusted without imposing any penal interest or otherwise. Therefore, it would not attract the mischief of the decision in Hindustan Electro Graphites Ltd. : [2000]243ITR48(SC) . In Asst. CIT v. J. K. Synthetics Ltd. : [2001]251ITR200(SC) , the Apex Court had expressed its reservation about the correctness of the judgment in Hindustan Electro Graphites Ltd. (supra) since the assessee in that case did not challenge the provisions of sub-section (1A). Be that as it may, we need not go into the said question in view of the facts and circumstances of the present case. Inasmuch as in Hindustan Electro Graphites Ltd. (supra), it was held that the assessment is to be made on the basis of the law as existing on the date of filing the return. Even if we agree with the said decision, even then that will not help Dr. Pal in his contention in view of the fact that the decision in Associated Power Co. Ltd. (supra) was rendered on 28-11-1995, declaring the law, which became effective on the date it was declared ; whereas the return was filed on 30-11-1995, after the law was so declared.
The decision in Samtel Color Ltd. (supra) cited by Dr. Pal does not help us in the facts and circumstances of the case in view of the decision in Associated Power Co. Ltd. (supra) simply because appropriation to contingency fund was accepted as allowable deduction in earlier years. With due respect, we are unable to agree with the principle sought to be enunciated by Dr. Pal relying on this decision. That apart the acceptance of deduction of appropriation to contingency reserve for the earlier years has since been reversed in the subsequent regular assessment under section 143(3) in respect of two assessment years while in respect of the other two assessment years it was pending. These facts make the present case distinguishable from the facts of the case cited. Reliance on the decision in Vijay Mallya v. Asst. CIT (2003) 263 ITR 41 disposed of on 12-5-2003, by this Bench does not seem to be of any assistance since the said decision dealt with the matters other than the question involved in this case.
In the result, the appeal fails and is hereby dismissed. The interim order granted is hereby discharged. All questions are kept open to be agitated in the appeal, if filed. The period spent in pursuing the remedy through this writ petition would be available to the appellants under section 14 of the Limitation Act in case the appellants prefer an appeal.
There will, however, be no order as to costs.
Urgent xerox certified copy of this judgment be made available to the parties, if applied for.
R. N. Sinha J.
I agree.