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TMI Blog1972 (1) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... h March, 1954, and thereafter issued the notice under section 34 in the name of M/s. Turner Morrison Co. Ltd., agents of M/s. Hungerford Investment Trust Ltd., for the year 1949-50. Though the approval was made as aforesaid, the notice under section 34 was issued against Hungerford Investment Trust Ltd. Return was filed by Turner Morrison Co. Ltd. as agents of Hungerford Investment Ltd. and the status was shown as non-resident. For the year 1950-51, the notices were issued on Hungerford Investment Trust Ltd. for the income in respect of tax dividend deemed to have been declared under section 23A. Similarly, in 1951-52 also notice was served on the Hungerford Investment Trust Ltd. The petitioner's agent, M/s. Turner Morrison Co. Ltd., filed return mentioning the name of the assessee as M/s. Hungerford Investment Trust Ltd. and the address given was of Singapore. Thereafter, it appears that the petitioner was not finally assessed. Turner Morrison Co. Ltd. was, however, assessed. The Income-tax Officer assessed M/s. Turner Morrison Co. Ltd. as agents of Hungerford Investment Trust Ltd. and taking the status as non-resident. Being aggrieved by the said assessment order, M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust Ltd., and in connection with the assessments for 1950-51 and 1951-52, the Income-tax Officer initiated proceedings for direct reassessment on the non-resident company, but inadvertently in the assessment order the machinery was shown as the resident company as agents of the non-resident company and, therefore, in my opinion the Appellate Assistant Commissioner is justified in giving a direction to make fresh direct assessment on the non-resident company as the assessee all throughout remains the non-resident company and the direction visualises only a change in the machinery for the assessment. Similarly, in connection with the assessment of 1949-50, though the Income-tax Officer sought to adopt the machinery of assessment on the non-resident company through the resident-agent, the Appellate Assistant Commissioner is justified in giving direction to make a direct assessment on the non-resident company as the assessee remains the non-resident company and only the machinery of assessment is sought to be changed." Thereafter, the respondent by letter dated October 26, 1961, issued notice on the Hungerford Investment Trust Ltd. (in liquidation). Being aggrieved by the said notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer his a power to treat undistributed dividend as deemed income of the non-resident company. Under section 43 of the Act the agent of a person residing outside the taxable territory may be deemed to be an agent in respect of the non-resident company and if the agent is assessed, the non-resident company cannot be assessed for the same assessment year in respect of tax of deemed income under section 23A of the Income-tax Act. It is argued by Dr. Pal that, though in this case notice was served on the Hungerford Investment Trust Ltd., the assessment was made on Turner Morrison Co. Ltd. In an appeal by Turner Morrison Co. Ltd. challenging the assessment, the Appellate Assistant Commissioner set aside the assessment. In the said appeal Hungerford Investment Trust Ltd. was not a party. It is, therefore, argued that the direction to serve the notice under section 34 against Hungerford Investment Trust Ltd. cannot bind the petitioner, Hungerford Investment Trust Ltd. If at all, section 34(3), second proviso, will apply in respect of the assessee only but as soon as it is sought to be applied to any other person it must be held to be ultra vires. Dr. Pal referred to the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse with the assessments of the year under appeal." The expression "any person", therefore, cannot be read to mean "any person" in its widest connotation. If it is so read then the case decided in S. C. Prashar v. Vasantsen Dwarkadas will come into play. But, otherwise, the expression "any person" is necessarily circumscribed as hold by the Supreme Court by the scope and subject-matter of the appeal or revision or that person must be one who would be liable to be assessed for the whole or the part of the income that went into the assessment for the year under appeal. There cannot be any doubt in the present case that M/s. Hungerford Investment Trust Ltd. being a non-resident company is liable to be assessed through its agent, M/s. Turner Morrison Co. Ltd. If that is so, it cannot be stated that M/s. Hungerford Investment Trust Ltd. comes within the mischief of the words "any person" in its widest connotation. In other words, in my opinion, M/s. Hungerford Investment Trust Ltd. comes within the mischief of the words "any person" meaning thereby a person intimately connected with the assessment for the year under appeal. It appears that the matter argued by Dr. Pal is not now op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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