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TMI Blog1939 (12) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... rustees under the will. In his (Akshoy Kumar Ghosh's) will he directed that certain payments should be made out of the income of the property. Then he bequeathed his residuary estate to his male heirs or to a son to be adopted by his wife after his death. Akshoy Kumar Ghosh left no male heir and after his death his widow adopted one Ajit Kumar Ghosh as her son on May 31, 1933. The widow herself died on October 31, 1933. Akshoy Kumar Ghosh by his will directed his executors to spend a certain sum of money on his Adya Sradh out of the income of his property. He also directed that his executors and trustees should pay the costs of taking out probate of his will out of the income of his property. He further directed that certain payments of money should be made to certain beneficiaries named, gradually out of the income of his property. He also directed that his executors and trustees should pay annuities to certain persons out of the income of his property. In the assessment of income-tax for the year 1933 made upon two of the persons named in Akshoy Kumar Ghosh's will as executors-P.C. Mallick and D.C. Aich, the present petitioners, who are in fact the executors and tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rule Nisi. In my opinion the facts are quite clear and the law is quite clear. The statute says that if for any reason income has escaped assessment in any year, the Income-tax Officer may, within one year of the end of that year do certain things with a view to assessing or reassessing that income. Clearly the sum of ₹ 39,492 was not assessed. It was not assessed because the Income-tax Officer made a mistake in 1933 which he attempted to put right in January 1935. In my view it is impossible to say, having regard to the plain words of the statute, that that income of ₹ 39,492 did not escape assessment in the year in question. A somewhat similar position arose in the case of Commissioner of Income-tax, Bombay v. D.R. Naik [1939] 7 ITR. 362, where Beaumont, C.J., stated at p. 367: The reason why the asseesee was assessed as a member of a Hindu joint family, although he was the sole surviving coparcener, was because this Court had held that in such a case he was entitled to be so assessed, but subsequently, the Privy Council took a different view. So that the mistake, which resulted in the original assessment, was a mistake of law, for which the learned Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some one else. For these reasons in my opinion this Rule in both its parts should be discharged. We allow to the learned Advocate appearing a fee of seven gold mohurs in gross in lieu of taxed costs. The other four Rules are discharged for similar reasons with no order as to costs. Nasim Ali J.-I agree, but I would like to add a few words. Much reliance was placed by the assessees on the following passage in the judgment of their Lordships of the Judicial Committee in the case of Sir Rajendranath Makerjee v. Commissioner of Income-tax, [1934] L.R. 61 I.A. 10. This involves reading the expression 'has escaped assessment' (in Section 34 of the Income-tax Act, 1922) as equivalent to 'has not been assessed'. Their Lordships cannot assent to this reading. It gives too narrow a meaning to the word 'assessment' and too wide a meaning to the word 'escaped' The fact that Section 34 requires a notice to be served calling for a return of income which has escaped assessment strongly suggests that income which has already been duly returned for assessment cannot be said to have ' escaped assessment within the statutory meaning . The cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether it has a wider meaning and includes the process of assessment also. I do not find anything in the judgment of their Lordships to justify the view that the word assessment in Section 34 does not mean the final assessment also. The words not confined and the expression too narrow a meaning to the word assessment clearly indicate that the word assessment means also has not been assessed . The assessees' contention was that Section 34 contemplates only cases where the income has escaped assessment by reason of its being not included in the return. But the words in the section are for any reason . These words are very wide. The non-inclusion of the income in the return may be one of these reasons, mistake of law may be another reason. I do not find anything in the section to restrict the operation of the section only to cases of non-inclusion of the income in the return. It was also argued on behalf of the assessees that if the section be interpreted to empower the Income-tax Officer to revise the assessment for any reason, there would be no finality in the assessment. But the powers of the Income-tax Officer can be exercised only within one year from the end o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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