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TMI Blog1957 (3) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and instead Pannalal in his individual capacity had become the commission agent of Messrs. J.K. Distributors, Kanpur, so that the commission earned was the individual income of Pannalal and not the income of the Hindu undivided family. This plea was accepted and the commission received from Messrs. J.K. Distributors, Kanpur, was not included in the assessment of the income of the Hindu undivided family. Pannalal also filed a return of his individual income for the assessment year 1942-43 and on its basis the commission which was received from Messrs. J.K. Distributors, Kanpur, was assessed as the income of Pannalal in his individual capacity. That assessment was made on 22nd October, 1943. For the next assessment year 1943-44, no notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome from commission received from Messrs. J.K. Distributors, Kanpur. Thereupon the Hindu undivided family preferred two appeals one against the revised assessment for the year 1942-43 and the other against the assessment for the year 1943-44 in both the cases challenging the inclusion of the commission in the income of the family. On 17th April, 1945, the Appellate Assistant Commissioner accepted both the appeals and held that the commission income did not belong to the family and excluded that income from the assessment of the family for both the assessment years 1942-43 and 1943-44. In the meantime the proceedings for assessment of Pannalal for the year 1944-45 had also been transferred to the Excess Profits Tax cum Income-tax Officer on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legally applicable ? The contention on behalf of the assessee in this case is that, when the proceedings under section 34 were started by the Income-tax Officer against Pannalal in respect of the assessment year 1943-44, he had received no definite information leading to the discovery that his income had escaped assessment which was not already available to him earlier when he should have taken proceedings for the original assessment under section 22 of the Income-tax Act. The facts founds show that the Income-tax Officer assessed Pannalal as an individual in the assessment year 1942-43 after holding that the commission income from Messrs. J.K. Distributors, Kanpur, was income received by Pannalal as an individual and was not the incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J.K. Distributors was income of the family and not the income of Pannalal as an individual. He refrained from issuing the notice to Pannalal in spite of the fact that, in the preceding year 1942-43, the income from this very source had been held by the Department to be income of Pannalal as an individual. The act of refraining from issuing the notice must, therefore, have been a conscious act after taking the view that this income was not the income of Pannalal as an individual but the income as income of the Hindu undivided family. It appears to us that by treating that income as income of the Hindu undivided family, the Department stood to gain because, if this income was held to be that of the Hindu undivided family, the tax on this amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t definite information about any fact but merely the view which the Appellate Assistant Commissioner held on those facts. Because of the view of the view of the Appellate Assistant Commissioner, it appears that the Income-tax Officer also then changed his view and decided to assess this income as the income of Pannalal as an individual. Such a change of view by the Income-tax Officer is not a sufficient ground justifying proceedings under section 34 of the Income-tax Act. No definite information having been received by the Income-tax Officer about any facts leading to the discovery that the income had escaped assessment, the proceedings taken were incompetent. Our view is supported by two earlier decisions of this court in New Victoria Mill ..... X X X X Extracts X X X X X X X X Extracts X X X X
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