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Issues:
1. Entitlement of an assessee to apply for a refund under Section 35 of the Indian Income Tax Act without objecting to the original assessment. 2. Entitlement of a refund if assessment was made under a mistake and no application for refund was made by the assessee. Analysis: 1. The case involved a reference to the High Court under an order directing the Commissioner of Income Tax to state a case on two points. The first point addressed whether an assessee could apply for a refund under Section 35 without objecting to the original assessment. The second point dealt with the entitlement to a refund if the assessment was made under a mistake without the assessee applying for it. The Commissioner expressed that no proceedings under Section 35 were initiated and found no mistake apparent on the record, leading to a detailed examination of the facts and relevant sections of the Act by the Court. 2. The case revolved around five collieries separately assessed for income tax until 1922-1923, when it was discovered they belonged to the same firm. The firm requested rectification under Section 35 after an initial notice was issued under the same section. However, the Commissioner argued that the notice was not issued under the correct section and that Section 34 was applicable for recovering taxes. The Court analyzed the circumstances and found that the firm failed to disclose ownership earlier, leading to the conclusion that there was no mistake apparent in the assessment, thus denying the refund claim. 3. The Court deliberated on the application of Section 66(2) and (3) concerning appeals and references to the High Court. Despite initial refusals, the High Court directed the Commissioner to state a case for reference. The judgment emphasized that the real issue was whether a mistake was evident in the assessment record, justifying a refund under Section 35. The Court ultimately ruled against the refund claim, stating that no mistake existed, and the assessee's failure to disclose ownership timely did not constitute a valid ground for rectification. 4. Both judges, Thomas Fredrick Dawson Miller and Foster, concurred on the decision, with Foster agreeing with the analysis and conclusion of the main judgment. The Court awarded costs to the Commissioner of Income Tax and assessed a hearing fee, concluding the case. This detailed analysis highlights the complexity of the legal issues surrounding the entitlement to a refund under the Income Tax Act and the critical examination of facts and legal provisions undertaken by the High Court in reaching its decision.
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