Smt. Gita Dutta Vs. Commissioner of Income Tax - Court Judgment

Excerpt:
- orderd.k. seth, j.1. this appeal is against a block assessment comprising ten previous years. the stamp reporter had notified deficiency in payment of court fees.2. mr. j.p. khaitan, learned advocate for the appellant, submits that a block assessment is an exception to, and distinct and, different from, a regular assessment as is apparent from reading of section 158ba, explanation and 158bb of the it act, 1961. it is an independent assessment over and above the regular assessment covering a block period which gives rise to one cause of action though comprises of several years of assessment.3. after having heard mr. khaitan and perusing the provisions contained in sections 158b, 158ba and 158bb of 1961 act, it appears that in terms of clause (a) of section 158b, block period comprises of previous years relevant to ten assessment years preceding the previous year in which the search was conducted as it stood prior to its amendment effective from 1st of june, 2001. this was explained in sections 158ba to 158bb to be in addition to the regular assessment in respect of each previous year included in the block period and shall not be included in the regular assessment of any previous years included in the block period excluding the income assessed in regular assessment of income of such block period and in terms of section 158bb the undisclosed income of the block period shall be the aggregate of the total income of the previous years falling within the block period computed in accordance with the provisions of the 1961 act.4. thus, the scheme of the act indicates that the assessment is one, though comprises of several years, and the income is also one which is the aggregate of the total income of all the assessment years included in the block period which is independent of the regular assessments for the respective previous years included in the block period. thus, it forms only one cause of action for the assessee. inasmuch as, in case of search and seizure, the assessment is termed as block assessment, i.e., though comprises of assessment of several years' income but treated as one single block giving rise to one and single proceeding giving rise to one cause of action to the assessee, distinct from consolidation of several proceedings arising out of different causes of action. 'the judgment/order passed therein is one and the same and not a common one governing several proceedings. the several years are, by fiction, treated as one block. the legal fiction so created is recognized as such under the provisions of the 1961 act as is apparent from sections 158b to 158bb, as discussed above.5. the decision with regard to the payment of court fees on appeals in cit v. tata tea ltd. : [2005]272itr42(cal) proceeded on the basis of the number of separate and distinct cause of action, though consolidated and governed by one common judgment, yet retaining its independent, distinct and separate characteristic of the cause of action arising out of each distinct, separate and independent proceedings. if it comprises separate and independent distinct cause of action, then court fee is payable separately on each assessment; but when the cause of action is one, then one court fee is payable.6. in the present case, therefore, only one court fee is payable. therefore, there cannot be any question of any deficiency in the court fees paid. let a copy of this order be placed before the stamp reporter.7. after having heard mr. khaitan, we are inclined to adjourn the question formulated but it appears that the question of law can be decided on the established facts. therefore, we request mr. khaitan to advise the advocate-on-record to serve the copy of the memo of appeal and the application upon the department, if not already served, along with a signed copy of this order.8. the matter is treated as heard-in-part and the same will be taken up for admission and disposal on the next date of hearing, which is fixed on 8th of february, 2005.

Judgment:
ORDER

D.K. Seth, J.

1. This appeal is against a block assessment comprising ten previous years. The Stamp Reporter had notified deficiency in payment of Court fees.

2. Mr. J.P. Khaitan, learned advocate for the appellant, submits that a block assessment is an exception to, and distinct and, different from, a regular assessment as is apparent from reading of Section 158BA, Explanation and 158BB of the IT Act, 1961. It is an independent assessment over and above the regular assessment covering a block period which gives rise to one cause of action though comprises of several years of assessment.

3. After having heard Mr. Khaitan and perusing the provisions contained in Sections 158B, 158BA and 158BB of 1961 Act, it appears that in terms of Clause (a) of Section 158B, block period comprises of previous years relevant to ten assessment years preceding the previous year in which the search was conducted as it stood prior to its amendment effective from 1st of June, 2001. This was explained in Sections 158BA to 158BB to be in addition to the regular assessment in respect of each previous year included in the block period and shall not be included in the regular assessment of any previous years included in the block period excluding the income assessed in regular assessment of income of such block period and in terms of Section 158BB the undisclosed income of the block period shall be the aggregate of the total income of the previous years falling within the block period computed in accordance with the provisions of the 1961 Act.

4. Thus, the scheme of the Act indicates that the assessment is one, though comprises of several years, and the income is also one which is the aggregate of the total income of all the assessment years included in the block period which is independent of the regular assessments for the respective previous years included in the block period. Thus, it forms only one cause of action for the assessee. Inasmuch as, in case of search and seizure, the assessment is termed as block assessment, i.e., though comprises of assessment of several years' income but treated as one single block giving rise to one and single proceeding giving rise to one cause of action to the assessee, distinct from consolidation of several proceedings arising out of different causes of action. 'The judgment/order passed therein is one and the same and not a common one governing several proceedings. The several years are, by fiction, treated as one block. The legal fiction so created is recognized as such under the provisions of the 1961 Act as is apparent from Sections 158B to 158BB, as discussed above.

5. The decision with regard to the payment of Court fees on appeals in CIT v. Tata Tea Ltd. : [2005]272ITR42(Cal) proceeded on the basis of the number of separate and distinct cause of action, though consolidated and governed by one common judgment, yet retaining its independent, distinct and separate characteristic of the cause of action arising out of each distinct, separate and independent proceedings. If it comprises separate and independent distinct cause of action, then Court fee is payable separately on each assessment; but when the cause of action is one, then one Court fee is payable.

6. In the present case, therefore, only one Court fee is payable. Therefore, there cannot be any question of any deficiency in the Court fees paid. Let a copy of this order be placed before the Stamp Reporter.

7. After having heard Mr. Khaitan, we are inclined to adjourn the question formulated but it appears that the question of law can be decided on the established facts. Therefore, we request Mr. Khaitan to advise the advocate-on-record to serve the copy of the memo of appeal and the application upon the Department, if not already served, along with a signed copy of this order.

8. The matter is treated as heard-in-part and the same will be taken up for admission and disposal on the next date of hearing, which is fixed on 8th of February, 2005.