Judgment

SIKRI, CJI.:- This appeal by special leave is directed against the judgment of the High Court of Calcutta (D.N. Sinha, C.J., and A. K. Mukherjee, J.) dismissing the appeal of the appellants from the judgment of B.C. Mitra, J., dismissing an application under Art. 226 of the Constitution made by the appellant. The Division Bench followed the decision of this Court in M.M. Parikh v. Navanagar Transport & Industries, 63 ITR 663 .

2. The order impugned in the application is dated May 13, 1964. By this order the Income-tax Officer stated that

"on scrutiny of the records for the year of account relevant to the assessment year 1955-56 it has been noticed that the Company did not declare any dividends at its general meeting, even though there were sufficient profits available for doing so and that there were no losses incurred in the earlier years".

He also noticed that "during the relevant period the Company was one in which the public were not substantially interested in terms of sub-sec. (9) of section 23A." He concluded that "the provisions of Section 23A are, therefore, applicable and the Company is liable to pay additional Super-Tax as per provisions of law". The Income-tax Officer thereupon called upon the Company to show cause in writing why an order under section 23A be not passed. The appellant company protested that an order under S.23A would be an order of assessment or reassessment within S.34 (3) of the Indian Income Tax Act, 1922, and, therefore, would be barred.

3. A Bench of five Judges gave special leave. A Division Bench of this Court (Hegde and Grover, JJ.) has referred the case to a larger Bench.

4. In 63 ITR 663 it was held that

"an order under section 23A of the Indian Income-tax Act, 1922, as amended by the Finance Acts of 1955 and 1957, made by the Income-tax Officer directing payment of additional super-tax is not an order of assessment within the meaning of S.34 (3) of the Act, and to such an order the period of limitation prescribed under section 34 (3) does not apply".

5. The learned counsel for the appellant, Mr. Chagla, said that the judgment in M. M. Parikh s case, 63 ITR 663 was clearly erroneous and it should be overruled and relief granted to his client. Mr. B. Sen, learned counsel for the respondents, contended that this Court should decline to review its earlier judgment because it cannot be said that the earlier decision was clearly erroneous. He drew our attention to the judgment of a Bench of seven Judges in Keshav Mills v. Commissioner of Income-tax, Bombay, 1965-2 SCR 908 where Gajendragadkar, C.J., speaking for the Court observed at page 921:

"When this Court decides questions of law, its decisions are, under Art. 141, bidning on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. This is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error, but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified".

6. Gajendragadkar, C.J., pointed out, among other considerations, the following considerations to be borne in mind:

"On the earier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision or was any previous decision of this Court bearing on the point not noticed?"

These observations are binding on us and, therefore