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TMI Blog1962 (12) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the judgment of my learned brother, Kapur J., and as I am in full agreement with the conclusion reached by him, I need not restate the facts. The relevant assessment years were 1946-47 and 1947-48. The assessment orders were made on November 27, 1953. It is obvious that the assessments were not made within the time prescribed by sub-section (3) of section 34, the period being four years in this case. The Tribunal relied on the second proviso to sub-section (3) of section 34 as amended by the Amending Act of 1953 which came into force on April 1, 1952. For reasons which I have given in S. C. Prashar, Income-tax Officer, Market Ward, Bombay v. Vasantsen Dwarkadas [1963] 49 I. T. R. (S. C.) 1 (Civil Appeal No. 705 of 1957) in which judgment has been delivered today, the second proviso to subsection (3) of section 34 does not revive a remedy which became barred before April 1, 1952, when the amended proviso came into force. Next, the appellant relied on section 31 of the Amending Act of 1953. I agree with my learned brother, Kapur J., that the question of law which was referred to the High Court does not take in the point now sought to be urged before us. Secondly, for reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 1951, in regard to his separate income, (2) by S. Nechal Singh also in his individual capacity and the third under protest by S. Nechal Singh as the karta of the Hindu undivided family. The latter return was dated June 20, 1950, and the total income in the return was declared as nil. On March 15, 1951, the Income-tax Officer assessed the total income of S. Nechal Singh and S. Lakhmir Singh as the income of the Hindu undivided family. On March 20, 1953, an appeal was taken against the assessment for the year 1946-47 and the Appellate Assistant Commissioner set aside the two orders of the Income-tax Officer in view of the order of the Income-tax Appellate Tribunal dated October 15, 1952, above referred to. On November 27, 1953, the Income-tax Officer made an assessment upon the respondent, S. Lakhmir Singh, in his individual capacity. An appeal was taken against that assessment order to the Appellate Assistant Commissioner and the contention raised was that the order of assessment was barred under the provisions of the unamended section 34(3) of the Act. This contention was rejected and an appeal taken to the Appellate Tribunal was dismissed on September 6, 1955. The Tribunal held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of sub-sections (1), (2) and (3) of section 34 of the principal Act [the Indian Income-tax Act, 1922] shall apply and shall be deemed always to have applied to any assessment or reassessment for any year ending before the 1st day of April, 1948, in any case where proceedings in respect of such assessment or reassessment were commenced under the said sub-sections after the 8th day of September, 1948 " It was argued that the assessments are for the years ending before April 1, 1948, and the assessments were commenced under sub-section (1), (2) and (3) of section 34 after September 8, 1948, and therefore sub-sections (1), (2) and (3) must be deemed to have applied to the two assessments. In the first place no such question was raised before the High Court. It had only to answer the question which was referred to it as it was acting in its advisory jurisdiction ; and it could not answer any other question. But it was submitted that the form of the question itself is such that it takes in the applicability of section 31 of the Amending Act of 1953. As we have said above this question was not referred to either in the High Court or in the grounds of appeal when the certificate was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the next year 1945-46, the claim under section 25A was repeated. This claim was again rejected and the assessment was made on the basis of a Hindu undivided family, but a protective assessment was made upon the assessee as an individual for the income which he had shown in the separate return filed by him. This time an appeal was filed against the rejection of the claim under section 25A. While the aforesaid appeal was pending, the assessee and his father filed separate returns for the year 1946-47 and the father also filed a return as karta of the Hindu undivided family in which the income was declared as nil on the ground that the Hindu undivided family did not exist since 1944-45. On March 15, 1951, the Income-tax Officer amalgamated the incomes of the assessee and his father, assessable in the year 1946-47, and assessed them on the total income as the income of a Hindu undivided family. He, however, did not make any protective assessment this time as he had done for the year 1945-46. The assessee's father as the karta of the Hindu undivided family appealed from the order of March 15, 1961. On October 15, 1952, the Income-tax Appellate Tribunal allowed the assessee's appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturns which had been filed by the assessee in his individual capacity. The assessee appealed against the order of November 27, 1953, but the appeal was dismissed. Thereafter, the assessee obtained an order from the Tribunal referring the following question in respect of the Tribunal's order dismissing his appeal against the assessment for the year 1946-47 for the decision of the High Court at Patna : " Whether having regard to the return dated 7th March, 1951, by Sardar Lakhmir Singh in his individual capacity and to the provisions of section 34(3) the assessment made on him on the 27th of November, 1953, is validly made. " A similar question was referred to the High Court under another order of the Tribunal in respect of the year 1947-48. The High Court answered the questions against the revenue authorities who have, therefore, come up in appeal against the decision of the High Court. That is why there are two appeals. The assessee contends that the orders of assessment were not within the time prescribed in section 34(3) of the Act. Under the substantive part of sub-section (3) the orders of the assessment should have been made within four years of the years 1946-47 and 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them can be made at any time but in the case of other evaders of tax, an order must be made within the time prescribed in the substantive part of sub-section (3). The assessee in the proviso is the assessee in the appeal from or in other proceedings in whose assessment an order under section 31 or the other sections mentioned in the proviso, is made. It may be said-though I do not pronounce finally on the question now-that such an assessee may be put in a separate class, for, in his case, in his presence it has been found judicially that he has evaded tax. To that extent, he may be different from other evaders of tax and the differentia that distinguishes him may have a rational relation to the object of the Act, namely, prevention of evasion of tax and collection of tax that was due but had not been paid. But the proviso puts in a class not only the assessee but other persons, namely, those against whom an order of assessment comes to be made in consequence of an order under section 31 made in the assessment case of another person, that is, the assessee mentioned in the proviso. These persons obviously are persons against whom the Appellate Assistant Commissioner making the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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