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Thakur Das Tej Prakash Vs. Income-tax Officer, D-ward and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 774 of 1962
Judge
Reported in[1970]75ITR523(All)
ActsIncome Tax Act, 1922 - Sections 24(1), 24(2) and 34(1)
AppellantThakur Das Tej Prakash
Respondentincome-tax Officer, D-ward and anr.
Appellant AdvocateAmbika Prasad, Adv.
Respondent AdvocateShanti Bhushan, Adv. General and ;R.R. Misra, Adv.
Excerpt:
- - section 34 of the act ran thus :(1) if--(b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the income-tax officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year,.he may......from money-lending business, was brought forward from the previous year, and was set off against assessee's income of rs. 12,858. calculation was made on these lines for assessment years 1954-55 and 1955-56 also. another officer, at the time of making assessment for the year 1956-57, detected the mistake under section 24(2) of the act. this officer, therefore, issued notice to the assessees under section 34(1)(b) of the act for reassessment. this notice under section 34(1)(b) of the act was challenged by the assessees by filing a writ petition in this court. the writ petition has been dismissed by a single judge of this court. the assesses have, therefore, filed this special appeal.2. mr. ambika prasad, appearing for the appellants has urged before us that, on the facts of this case,.....
Judgment:

V.G. Oak, C.J.

1. This special appeal arises out of proceedings for reassessment under the Indian Income-tax Act, 1922. Messrs. Thakur Das Tej Prakash are the assessees. In the assessment year 1953-54 the assessee's assessable income was determined at Rs. 12,858 from his business. The loss of earlier years amounting to Rs. 84,039 which was from money-lending business, was brought forward from the previous year, and was set off against assessee's income of Rs. 12,858. Calculation was made on these lines for assessment years 1954-55 and 1955-56 also. Another officer, at the time of making assessment for the year 1956-57, detected the mistake under Section 24(2) of the Act. This officer, therefore, issued notice to the assessees under Section 34(1)(b) of the Act for reassessment. This notice under Section 34(1)(b) of the Act was challenged by the assessees by filing a writ petition in this court. The writ petition has been dismissed by a single judge of this court. The assesses have, therefore, filed this special appeal.

2. Mr. Ambika Prasad, appearing for the appellants has urged before us that, on the facts of this case, there could be no action for reassess ment under Section 34(1)(b) of the Act. Section 34 of the Act ran thus :

(1) If--...

(b) notwithstanding that there has been no omission or failure as mentioned in Clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year,...

he may. .proceed to assess or reassess such income,..'

3. Mr. Ambika Prasad urged that the Income-tax Officer has issued notice under Section 34(1)(b) of the Act although he had in his possession no information as contemplated by Section 34(1)(b) of the Act.

4. It has been found that the first Income-tax Officer committed a mistake in applying Section 24(2) of the Act. The second officer proceeded to correct the mistake. The question arises whether mistakes of this type can be corrected by taking action under Section 34(1)(b) of the Act.

5. Mr. Ambika Prasad urged that possibly the officer, who made the original assessments, could correct the mistake; but the second officer could not take any such step. It is difficult to accept this contention. Section 34(1)(b) makes no reference to any particular officer who can take action under this provision.

6. In Commissioner of Income-tax v. Rathinasabapathy Mudaliar, [1964] 51 I.T.R. 204 it was held by that Madras High Court that :

' The information contemplated by Section 34(1)(b) of the Indian Income-tax Act, 1922, which gives jurisdiction to the Income-tax Officer to reopen an assessment is information that income, profits and gains chargeable to income-tax had escaped assessment in the assessment of the assessee. Even inadvertence or error in the making of assessment would bring a case within Section 34(1)(by, and if an error is discovered after the assessment was made that is information subsequent to the original assessment.'

7. In Commissioner of Income-tax v. A. Ramanand Co., [1968] 67 I.T.R. 11 (S.C.). their Lordships to the Supreme Court observed, at page 16, thus :

' That information, must, it is true, have corne into the possession of the Income-tax Officer after the previous assessment, but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law, but was not in fact obtained, the jurisdiction of the Income-tax Officer is not affected.'

8. In Asgar Ali Mohammad Ali v. Commissioner of Income-tax, [1964] 52 I.T.R. 962 it was held by a Division Bench of this court that :

' Where in the original assessment the Income-tax Officer had omitted to consider and apply to the facts of the case the relevant statutory provision, it is open to the succeeding Income-tax Officer when that omission is noticed by him, to proceed under Section 34 to assess the income which has escaped assessment. When the succeeding officer comes to notice the omission of his predecessor he must be held to have information in his possession within the meaning of Section 34.'

9. We thus find that there is much authority in support of the stand taken by the respondents to the special appeal. In any case, as observed by the learned single judge, the matter is not free from difficulty. Under the circumstances, the learned judge was justified in declining to interfere in the matter under Article 226 of the Constitution.

10. The special appeal is dismissed with costs.


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