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TMI Blog1940 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Income-tax has not erred in law in holding that the assessee described in the original assessment order of the Income-tax Officer, Magwe-Minbu Circle, for the year 1936-37 as 'estate of the late Baij Nath Singh' is the same as the individual Ved Nath Singh, and in combining the income of both and assessing as a single unit instead of separately as two units previously? (c) Whether such assessments made separately on two units previously can in law be combined and assessed as a single unit on Ved Nath Singh by the Commissioner of Income-tax acting under Section 33 of the Burma income-tax Act, without first setting aside the assessment alleged to be made on the wrong assessee, i.e., 'estate of the late Baij Nath S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s his, i.e., as the income of an individual. In their Lordships' view it would not be in consonance with ordinary notions or with a correct interpretation of the law of the Mitakshara, to hold that property which a man has obtained from his father belongs to a Hindu undivided family by reason of his having a wife and daughters . Mr. Clark agrees that the answer to the second question must be in the negative. But the mistake was made of making a separate assessment as regards the income from the father's estate upon the assessee as administrator thereof as if it were the income of a Hindu undivided family. When the Commissioner came (in the words of the case stated) to put the matter right , he issued a notice to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch fresh assessments can be made and fresh notices of demand can be issued . As was explained in Sheikh Abdul Kadir Maracayar v. Commissioner of Income-tax, Madras, (2 I.T.C. 372), the revising authority can revise only the particular assessment under consideration, and can act only on the material available in respect of that assessment. The Commissioner has expressed the view that in this case there has been an under-assessment, and that he has authority under Section 33 to rectify that matter. But, in my opinion, he has not assessed correctly what has hitherto been wrongly assessed, but has assessed income which has hitherto escaped assessment. Income has 'escaped assessment' within the meaning of Section 34, when it has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther's estate has escaped from the assessment made in respect of Ved Nath Singh personally. The learned Advocate-General contended that the decision in Rajendranath Mukerjee v. Commissioner of Income-tax, Bengal, (I.L.R. 61 Cal. 285), was authority for the proposition that when an assessee had duly made a return for the purposes of income-tax in respect of any income, in whatever capacity he made that return, the income could not be said to have escaped assessment; and that in the present case Ved Nath Singh had made two returns, one in respect of his own oil refinery business and one in respect of the income from his father's estate, and that therefore the latter could not be said to have 'escaped assessment' so far as h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except in so far as he may enhance the assessment on the income from the oil refinery. If, on the other hand, he says that some income has escaped assessment he can- not act outside the scope of Section 34 of the Act. It is conceded that Section 35 has no application. The Commissioner cannot, by purporting to act under Section 33 of the Act, take action under Section 34, although he can, if the time within which such action must be taken has not expired, direct the Income-tax Officer to take such action. It is plain from the provisions of Section 34 that under this section there must be a fresh notice under Section 22(2), requiring the assessee to make a new return of his income from all sources, and following thereon a fresh assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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