1. This is a reference by the Commissioner of Income-tax on the application of an assessee who is a minor of unsound mind under the guardianship of his mother. On 2nd February 1927 the income-tax officer made an assessment under Section 23(4), Income-tax Act, acting under that section because no return of income had been filed. The assessment was on an income estimated at Rs. 1,17,600 and the minor was assessed to income-tax and super-tax, the assessment being based on the income estimated for 1925-26. On 11th March 1928 the income-tax officer came to the conclusion that some income had escaped assessment and accordingly he issued a notice to the minor under Sections 22(2) and 34 for the same year's income. Accounts were filed and the income-tax officer assessed the income as Rs. 1,31,875. Against that assessment of extra income an appeal was made to the Assistant Commissioner and the Assistant Commissioner held that the actual income was less than the Rs. 1,17,600 which had been originally assessed on 2nd February 1927. It is admitted that he did not proceed to find what in his opinion the total income was, but he treated the matter before him as confined to the appeal against an assessment on additional income and he accordingly allowed the appeal.
2. The assessee has now asked that an opinion should be given as to whether the Assistant Commissioner was precluded from granting relief to the assessee against the original assessment under Section 23(4). This is the main point in the case. Now Section 34 under which the second notice was issued states as follows:
If for any reason income, profits or gains chargeable to income-tax has escaped assessment in any year, or has been assessed at too low a rate, the income-tax officer may, at any time within one year of the end of the year, serve on the person liable to pay tax on such income, profits or gains, or, in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under Sub-section (2), Section 22, and may proceed to assess or reassess such income, profits or gains, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that subsection.
3. We consider that the words in a later part of the passage quoted:
assess or re-assess such income, profits or gains must be taken to refer to the income profits or gains
chargeable to income-tax which have escaped assessment referred to in the prior part of the section. Accordingly in a proceeding under Section 34 the income-tax officer and after him the Assistant Commissioner are only dealing with the extra income which has not been assessed to income-tax. No jurisdiction is given to either of the these officers by Section 34 to make a now assessment for the purpose of taxing the whole of that assessment under the Income-tax Act. Accordingly our answer to the first question:
Do the provisions of Section 34 limit the action of the income-tax authorities to the assessment of income which has previously escaped assessment or which has been assessed at too low a rate
is in the affirmative. We hold that the Assistant Commissioner of Income-tax was precluded from granting any further relief to the assessee than allowing his appeal against the assessment of extra income-tax. We may note that this opinion is in accordance with an opinion of a Full Bench of the Madras High Court in P.L.M.P.L. Palaniappa Chettiar v. Commissioner of Income-tax A.I.R. 1930 Mad. 126.
4. The second question is whether Section 34 confers on the authorities
a power of revision of a previous assessment and if the revision results in showing that the assessment under Section 23(4) was too much can relief be granted to the assessee
5. As already stated we consider that this question must be answered in the negative.
6. A further question was put forward by the assessee as to whether the Commissioner could exercise his discretion in his favour under Section 33 of the Act. The question of the exercise of his discretion by the Commissioner is a matter solely for the Commissioner and not a matter for this Court to consider in a reference.
7. No further question arises on this reference. Accordingly we direct that the reference be returned with these answers. As the applicant has not succeeded in his application we direct that he should pay his own costs and the costs of the Government including the fees of the Government Advocate assessed at Rs. 100.