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Madhavjee Damodar Thackersay and Another (Executors) Vs. Commissioner of Income Tax, Bombay. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai
Decided On
Case Number(Civil Reference No. 17 of 1933).
Reported in[1935]3ITR457(Bom)
AppellantMadhavjee Damodar Thackersay and Another (Executors)
RespondentCommissioner of Income Tax, Bombay.
Excerpt:
- .....unders powers conferred by section 34 of the act to levy tax on these two items so far as they had escaped assessment. the contention of the assesses is that the item 'other sources - interest' should have been assessed at rs. 55 thousand and odd instead of rs. 85,000, and they say that they should be allowed credit for the difference between these figures. mr. engineer has referred us to the decision of the full bench of the calcutta high court in satyendramohan roy chaudhuri v. the commissioner of income tax, bengal, and i agree with the views there expressed, viz., that under section 34 of the act it is income which has escaped assessment which can be subsequently charged and that it is not open to an assessee, when charged in that way to re-open the whole assessment and seek to be.....
Judgment:

BEAUMONT, C. J. - In this case the assesses were assessed under Section 23(4) of the Income Tax Act and in that assessment interest on securities were treated as Rs. 31 thousand and odd, dividends at Rs. 44 thousand odd and 'other sources - Interest' at Rs. 85,000. Subsequently it transpired that interest on securities should have been Rs. 58 thousand odd instead of Rs. 31 thousand and odd and dividends should have been Rs. 68 thousand odd, and instead of Rs. 44 thousand odd. The income tax authorities therefore proposed unders powers conferred by Section 34 of the Act to levy tax on these two items so far as they had escaped assessment. The contention of the assesses is that the item 'other sources - Interest' should have been assessed at Rs. 55 thousand and odd instead of Rs. 85,000, and they say that they should be allowed credit for the difference between these figures. Mr. Engineer has referred us to the decision of the Full Bench of the Calcutta High Court in Satyendramohan Roy Chaudhuri v. The Commissioner of Income Tax, Bengal, and I agree with the views there expressed, viz., that under Section 34 of the Act it is income which has escaped assessment which can be subsequently charged and that it is not open to an assessee, when charged in that way to re-open the whole assessment and seek to be allowed credit in respect of some item which has been over-assessed but on the other hand it is open for an assessee to show that income alleged to have escaped assessment has in truth and in fact not escaped assessment but has been brought in under some inappropriate head. It seems to me, however, that this case falls within the first branch of that proposition and not the second branch. Here two items were brought definitely into assessment, viz., interest on securities, and dividends, and those two items were under-assessed, and to the extent to which they were under-assessed they have escaped assessment. There is nothing to show that the other item other sources -Interest which includes interest on mortgages, bank deposits, and so forth would have been assessed at a lower figure if the Income Tax Officer had had the right figure in respect of the interest on securities, and dividends. It seems top me, therefore, that this is a case in which certain items have escaped assessment, although it is true that another item has been over assessed. But credit cannot be given to the assessee in respect of the latter item. I think, therefore, that we must answer the questions propounded to us in the same manner as the learned Commissioner, that is questions Nos. 1 and 3 in the affirmative and questions No. 2 in the negative. Assessee to pay the cost of the Commissioner on the original side scale to be taxed by the taxing Master.

RANGNEKAR, J. - I agree.

Reference answered accordingly.


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