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TMI Blog1978 (6) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... ad created a trust for the benefit of himself and Miss. Pilloo K. Shroff, whom he married a few months later on. It was mentioned in the trust deed that the settlement was effected in anticipation of the assessee's marriage with the said Miss Shroff. The assessee, his future wife and any children as might be born of the union were all beneficiaries of the trust. The trust properties originally consisted of certain shares in joint stock companies and insurance policies on the life of the assessee. The assessee was one of the original trustees, but he resigned the office on 10th July, 1940. The remaining trustees were the Mercantile Bank of India Ltd. and the assessee's wife. A copy of the deed of settlement dated 20th January, 1937, forms part of the statement of case as annexure A. In the income-tax return for 1938-39, the assessee had not shown in the appropriate column that he was functioning as the trustee of any deed of trust. The ITO included the income from the trust properties in the assessee's individual assessment and the appeal against such inclusion was unsuccessful. The record shows that the appeal was dismissed by the AAC because the assessee failed to produce the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that the ITO who issued the notice under s. 34(1)(b) to the assessee was not the same ITO who made the original assessment for the relevant year and that there was no indication on the record whether the latter before finalising the assessment referred to the trust deed and deliberately refrained from including the trust income in the assessment. However, after considering the various authorities cited before it and laying emphasis on the fact that in the earlier years the ITO of A-Ward had decided the cases both of the assessee and of the D.S. Bottlewala trust, the Tribunal observed that what was proposed to be done was on the basis of a change of opinion and there was no information which had come into the possession of the ITO in 1962 which would warrant the reopening of the assessment for the assessment year 1957-58. It is this conclusion of the Tribunal and the basis thereof which have been questioned by the Commissioner in this reference before us. Mr. Joshi on behalf of the Commissioner has pointed out that the Tribunal had given its decision principally on the basis of the decisions in D. R. Dhanwatay v. CIT [1956] 29 ITR 257 (Nag) and Dr. M. B. Dalal v. CIT [1963] 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and (4) above would be applicable to the facts of the case before us and would justify the reopening of the assessment for the year 1957-58. It was submitted that there was no warrant for the Tribunal observing that there was alleged misconstruction of the trust deed which was the ground for reopening, inasmuch as there was no material to show that the relevant provisions of the trust deed had been originally construed in the year 1957-58 for the purpose of determining the question of the revocability of the trust within the meaning of the same indicated by s. 16 of the I.T. Act. Mr. Joshi on behalf of the Commissioner submitted that this High Court earlier in CIT v. Holck Larsen [1972] 85 ITR 467 had laid down that a mere change of opinion, a desire to adopt a different approach than the one earlier adopted, would not permit reopening within the meaning of s. 34(1)(b). It was, however, submitted that there was nothing on the record of this case to suggest that a definite opinion had been earlier held for the assessment year 1957-58 or even in earlier years and that all that was done when the notice to reopen was issued to the assessee was on the basis of a change in the opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the previous ITO as urged by the revenue. If on the facts before us it is possible to take the view that-in 1957-58 the ITO had clearly adopted one course or made certain findings on the basis of which the trust was separately assessed or had even done anything to suggest that separate assessment of the trust had been considered and approved by him, then perhaps the learned counsel for the assessee would be right in submitting that the conclusions reached by this court in Dolwani's case [1978] 111 ITR 650 (Bom) must be the very conclusions to be arrived at in this case and that the ultimate decision of the Tribunal would be required to be confirmed. We are, however, afraid that the facts as found by the Tribunal before us are considerably different from the record as was available to this court in Dolwani's case [1978] 111 ITR 650 (Bom). It is clear from the assessment order for the assessment of 1957-58 that this aspect of the matter was not at all present to the mind of Mr. Sheth. Mr. Sheth was also not concerned with the assessment of the trust, and the position in Dolwani's case [1978] 111 ITR 650 (Bom) was totally different where the very same officer, Mr. Bhagwat, was h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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