Gopalan Nambiyar, J.
1. The writ appeal is against the dismissal of O.P. No. 227 of 1971 in which the petitioner-appellant impugned the noticesfor reassessment (exhibits P-5 and P-6) for the assessment years 1961-62 and 1962-63, issued to her under Section 17 of the Wealth-tax Act. O.P, No. 263 of 1971 is to quash the notices, exhibits P-l to P-5, issued to her for reassessment under the Income-tax Act in respect of the assessment years 1962-63 to 1965-66. Both, broadly and generally, raise the question of the jurisdiction to start, and to proceed with, the reassessment proceedings, and the validity of the action launched, and may be dealt with in a common judgment. We shall deal first with the writ appeal.
2. W.A. No. 536 of 1973
3. The appellant-writ petitioner's father, the late Mr. E.D. David, who died on September 3, 1958, was a prominent member of the Jewish community in Cochin. Her husband, Mr. S. Koder, is a commanding figure of that community. By documents inter vivos Mr. David had created three trusts : (1) The Mercantile Bank Trust ; (2) The Bank of India Trust; and (3) The Eastern Bank Trust. The settlor, Mr. E.D. David, it is said, was entitled to the income from the properties during his lifetime, and thereafter the same was to be taken by the appellant during her life, at least in respect of the first two trusts. Neither the settlement deeds or documents constituting the trust nor copies thereof have been exhibited. By his last will and testament dated April 12, 1943, Mr, David constituted a fourth trust, the State Bank of India Trust, in regard to his residuary properties. In respect of this last trust, the State Bank of India Trust was constituted both the executor as well as the trustee. Exhibit P-11 is a copy of the will. The appellant, as noticed, is a beneficiary under the Mercantile Bank Trust, the Bank of India Trust, and the State Bank Trust. It is said by the respondents that the State Bank functioned as executor of the residuary estate from September 3, 1958, till March 31, 1969. Thereafter, according to the respondents, the appellant, as the sole beneficiary, is entitled to the income of the trusts during her lifetime, and to payments under the will as legatee of the testator, from the State Bank of India in respect of the State Bank of India Trust. According to the respondents, she received payments from the trust and also a portion of the income from the executor. But neither the petitioner's returns nor the returns filed by the executors disclosed these assets and, therefore, the petitioner's interests in the assets were not included for assessment under the Wealth-tax Act. The petitioner's individual assessments under the Act for the years 1961-62 and 1962-63 were completed on September 17, 1962. Exhibits P-1 and P-2 are copies of the assessment orders. According to the respondent, these orders did not take into account the valuation of the petitioner's interests in the assets included in the trusts. Exhibits P-3 and P-4 dated March 30, 1962, and January 29, 1963, are copies of the assessment orders on the State Bank of India in respect of the State BankTrust properties for the same period, viz., 1961-62 and 1962-63. Exhibits P-5 and P-6, the notices impugned, for reassessment of the petitioner, were issued after these assessment orders. These merely state that the petitioner's net wealth chargeable to tax for the assessment years 1961-62 and 1962-63 had escaped assessment within the meaning of Section 17 of of the Wealth-tax Act and, therefore, it was proposed to reassess the net wealth which has escaped assessment. It is, however, well settled that the notices need not 'speak' or disclose the grounds for the proposed action, and there was no argument to the contrary.
4. The State Bank of India filed exhibit R-1 revision to the Commissioner of Income-tax against the wealth-tax assessment for the year 1963-64. It recalled the three trusts, viz., the Mercantile Bank Trust, the Bank of India Trust and the State Back Trust and pointed out that in the return of wealth of the estate of the late Mr. E.D. David, the wealth represented by the residuary estate and also the assets held in the name of the trusts were included. It was stated that while this might be in order during the lifetime of Mr. David, the State Bank was of the view that subsequent to his death the wealth of the estate should include only the residuary assets. Exhibit R-1 proceeded:
'As regards the assets held by the above-mentioned two trustees, viz., Mercantile Bank (Agency) Pvt. Ltd. and Bank of India Ltd., as Mrs. Koder was the life tenant under these two trusts, a portion of the value of the trust assets on the basis of Jellicoe's formula should be included in the lady's wealth-tax return. The balance of wealth should be taxed in the hands of the two trustees. However, as stated above, the total of the value of the residuary assets as well as of the trust assets have been assessed to wealth-tax in the hands of the estate of Mr. E.D. David. We also advised Mrs. Koder about this matter and she differed from us. We requested the Wealth-tax Officer to revise the assessment but the Wealth-tax Officer advised us to prefer an appeal to you.'
5. The counter-affidavit has stated that on this petition, the Commissioner set aside the assessment orders for 1963-64 to 1967-68 and directed the Wealth-tax Officer to make fresh assessments. It was thereafter that exhibits P-5 and P-6 notices were issued.
6. The appellant moved the Commissioner of Income-tax and received exhibit P-8 reply refusing to interfere at this stage with the proposed reassessment. The appeal or representation to the Government of India also proved unsuccessful (exhibit P-9). It was thereafter that this writ petition was filed.
7. The arguments advanced were three-fold. First, that the discretion to assess having already been exercised under Section 21 of the Wealth-tax Act, by assessing the State Bank of India under exhibits P-3 and P-4orders in respect of the trust properties, the proposed reassessments of tbe petitioner in respect of the same assets for the identical period was not valid or proper. Second, if the original assessments under exhibits P-1 to P-4, whether on the petitioner or on the State Bank of India, were under a mistake, the proper remedy is by way of rectification of those assessments under Section 35 and the same could be done only within four years of the orders, which period had expired with respect to all the four assessment orders. Thirdly, that, in any event, even assuming action under Section 17 of the Wealth-tax Act is open and permissible, Clause (b) of the section alone could be resorted to, and not Clause (a), and, therefore, the larger period of limitation is not available.
8. Section 21 of the Wealth-tax Act reads:
'21. Assessment when assets are held by courts of wards, administrators' general, etc.--(1) In the case of assets chargeable to tax under this Act, which are held by a court of wards or an administrator-general or an official trustee or any receiver or manager or any other person, by whatever name called, appointed under any order of a court to manage property on behalf of another, or any trustee appointed under a trust declared by a duly executed instrument in writing, whether testamentary or otherwise (including a trustee under a valid deed of wakf), the wealth-tax shall be levied upon and recoverable from the court of wards, administrator-general, official trustee, receiver, manager, or trustee, as the case may be, in the like manner and to the same extent as it would be leviable upon and recoverable from the person on whose behalf or for whose benefit the assets are held, and the provisions of this Act shall apply accordingly.
(2) Nothing contained in Sub-section (1) shall prevent either the direct assessment of the person on whose behalf or for whose benefit the assets above referred to are held, or the recovery from Such person of the tax payable in respect of such assets.
(3) Where the guardian or trustee of any person being a minor, lunatic or idiot holds any assets on behalf or for the benefit of such beneficiary, the tax under this Act shall be levied upon and recoverable from such guardian or trustee, as the case may be, in the like manner and to the same extent as it would be leviable upon and recoverable from any such beneficiary if of full age, of sound mind and in direct ownership of such assets,
(4) Notwithstanding anything contained in this section, where the shares of the persons on whose behalf or for whose benefit any such assets are held are indeterminate or unknown, the wealth-tax shall be levied upon and recovered from the court of wards, administrator-general, official trustee, receiver, manager or other person aforesaid as if the persons on whose behalf or for whose benefit the assets are held were an individualwho is a citizen of India and resident in India for the purposes of this Act, and-
(a) at the rates specified in Part I of the Schedule; or
(b) at the rate of one and one-half per cent;whichever course Would be more beneficial to the revenue:
Provided that in a case where-
(i) such assets are held under a trust declared by will; or
(ii) such assets are held under a trust created before the 1st day of March, 1970, by a non-testamentary instrument and the Wealth-tax Officer is satisfied, having regard to all the circumstances existing at the relevant time, that the trust was created bona fide exclusively for the benefit of the relatives of the settlor or where the settlor is a Hindu undivided family, exclusively for the benefit of the members of such family, in circumstances where such relatives or members were mainly dependent on the settlor for their support and maintenance ; or
(iii) such assets are held by the trustees on behalf of a provident fund, superannuation fund, gratuity fund, pension fund or any other fund created bona fide by a person carrying on a business or profession exclusively for the benefit of persons employed in such business or profession,
wealth-tax shall be charged at the rates specified in Part I of the Schedule.
Explanation.--Notwithstanding anything contained in Section 5, in computing the net wealth for the purposes of this sub-section in any case, not being a case referred to in the proviso, any assets referred to in Clauses (xv), (xvi), (xxii), (xxiii), (xxiv), (xxv), (xxvi) (xxvii), (xxviii) and (xxix) of Sub-section (1) of that section shall not be excluded.
(5) Any person who pays any sum by virtue of the provisions of this section in respect of the net wealth of any beneficiary, shall be entitled to recover the sum so paid from such beneficiary, and may retain out of any assets that he may hold on behalf or for the benefit of such beneficiary, an amount equal to the sum so paid.
Explanation.--In this section, the term 'beneficiary' means any person including a minor, lunatic or idiot on whose behalf or for whose benefit assets are held by any other person.'
9. As pointed out by the learned judge, while Clause (1) of Section 21 permits levy and recovery of wealth-tax from the trustee, receiver, manager, etc., in the same manner and to the same extent as it would be leviable upon, and recoverable from, the beneficiaries, Sub-section (2) which opens with a non obstante clause reserves the power to directly assess the beneficiary, and the recovery from such beneficiary of the tax payable in respect of such assets. But counsel for the appellant relied on the decision in Commissioner of Wealth-tax v. Kumari Manna G. Sarabhai, : 86ITR153(Guj) . where Chief Justice Bhag-wati of the Gujarat High Court, speaking for the court, observed :
'The revenue has thus two modes of assessment available for assessing the interest of a beneficiary in the trust properties, where there is either a single beneficiary or there are more beneficiaries than one but their shares in the trust properties are determinate and known. The revenue may either assess the interest of the beneficiary in the trust properties in the hands of the trustees in a representative capacity under Sub-section (1) or assess it directly in the hands of the beneficiary by including it in the net wealth of the beneficiary. These two modes of assessment are clearly alternative to each other. The revenue can adopt either the one or the other but not both, because whether the assessment is made on the trustees or on the beneficiary, it is the same asset which is assessed to wealth-tax, namely, the interest of the beneficiary in the trust properties and it is elementary that the revenue cannot seek to assess the same asset twice. Sub-section (5) also emphasizes that where the trustees are assessed under Sub-section (1), the assessment is made on them 'in respect of the net wealth' of the beneficiary and if the trustees have to make payment of any amount in respect of the wealth-tax so assessed on them, they may retain such amount out of any assets which they may hold for the benefit of the beneficiary. '
10. Relying on the above passage, it was contended that as the State Bank of India had been assessed to wealth-tax in respect of the assets of the trust by exhibits P-3 and P-4 orders, the proposed reassessment of the appellant for the identical period and in respect of the same assets was unsustainable in law. By way of analogy, counsel pressed the decision of the Supreme Court in Joint Family of Udayan Chinubhai v. Commissioner of Income-tax, : 63ITR416(SC) where the court observed:
'Income from property of a Hindu undivided family, 'hitherto' assessed as undivided, may be assessed separately if an order under Section 25A(1) had been passed. When such an order is made, the family ceases to be assessed as a Hindu undivided family. Thereafter, that family cannot be assessed in the status of a Hindu undivided family unless the order is set aside by a competent authority. Under Clause (3) of Section 25A if no order has been made notwithstanding the severance of the joint family status, the family continues to be liable to be assessed in the status of a Hindu undivided family, but once an order has been passed, the recognition of severance is granted by the income-tax department, and Clause (3) of Section 25A will have no application.'
11. We are unable to see how the decision of the Supreme Court can have application or be helpful to the appellant. For one thing, the orderunder Section 25A(1) was an affirmation of the status of the family as undivided which had to be taken as such till the said order was set aside by a competent authority. No such declaration or affirmation of status could possibly be spelt out in this case, from exhibits P-l and P-2 or P-3 and P-4 orders. Even assuming it could, the Supreme Court decision carefully provided the safeguard that a family cannot be assessed in the status of a Hindu undivided family 'unless the order under Section 25A(1) is set aside by a competent authority'. In this case, exhibts P-3 and P-4 orders had been set aside by the Commissioner who directed fresh assessments to be made.
12. The above aspect apart, counsel for the revenue invited our attention to the Privy Council decision in Commissioner of Income-tax v. Mahaliram Ramji Das,  8 ITR 442 to the effect that the Income-tax Officer can initiate the reassessment proceedings under Section 34 even after, an order of assessment had been carried in appeal, and had become final. The decision was followed by the Allahabad High Comt in B.P. Halder & Sons, In re, : 10ITR79(All) Attention was called to the decision in S. Gyani Ram and Co. v. Income-tax Officer, : 47ITR472(All) in support of the view that the mere fact that a particular income had been assessed in the hands of a particular individual as his income cannot prevent or preclude the Income-tax Officer on proper materials from proceeding to reassess under Section 34 of the 1922 Act and treating the income as income of another. Reliance was also placed on the Supreme Court decision in Manji Dana v. Commissioner of Income-tax, : 60ITR582(SC) that there was nothing to preclude the Income-tax Officer in a subsequent year from assessing as income of the 'individual' a head of income assessed as that of a 'Hindu undivided family' in the previous year. The relevant observations of the court are as follows :
'Under Section 25A(1) the Income-tax Officer may, on an application that among the members of a Hindu family which has been hitherto assessed as a Hinda undivided family partition has taken place, record an order to that effect. Sub-section (3) provides that where such an order has not been made in respect of a Hindu family hitherto assessed as undivided, such family shall be deemed, for the purposes of the Act, to continue to be a Hindu undivided family. Sub-section (3) postulates the existence of a family which has been assessed as a Hindu undivided family. It is only where such family existed and the income earned was of the family that the Income-tax Officer is obliged to assess the income of the members of the family in the status of a Hindu undivided family, notwithstanding a plea that a partition has taken place among the members. But there is nothing in the Act which precludes the Income-tax Officerfrom coming to a conclusion that even though in the previous year the assessment was made on the footing that the assessee was a Hindu undivided family, there was in fact no Hindu undivided family and the income for the purposes of assessment belonged to an individual, and on that footing to make an order of assessment. It is also open to the Income-tax Officer to come to a conclusion, notwithstanding the terms of Section 25A(3) that the income sought to be assessed or reassessed is not the income of the Hindu undivided family, and on that footing to assess such income as of an individual.'
13. In Income-tax Officer v. Bachu Lal Kapoor, : 60ITR74(SC) the respondent was assessed to income-tax as the karta of a Hindu undivided family for the assessment year 1952-53. In a case filed against him by his wife and son, a compromise decree was passed on 20th October, 1952, recognizing him as karta of the joint family. On 18th January, 1954, the Income-tax Officer accepted the claim of partition under Section 25A of the Indian Income-tax Act, 1922, and for the assessment years 1953-54 to 1955-56, the members of the family were assessed as individuals. Subsequently, on 24th March, 1960, the officer issued a notice of reassessment under Section 34 of the 1922 Act to the respondent as karta of the Hindu undivided family in respect of the assessment year 1955-56. The respondent thereupon moved a petition under Article 226 of the Constitution of the Allahabad High Court to quash the notice on the grounds: (1) that the income having already been assessed for the year 1955-56 in the hands of the members could not be assessed again as the income of the family; and (2) that as the family had ceased to exist and the partition was recognized no notice could be issued to the respondent as karta of the family. The Income-tax Officer, in the counter-affidavit, averred that despite the compromise decree the members of the family were living together, had a joint mess, and that the business was run by the respondent and, therefore, the compromise was only a make-believe one and the family continued to be a Hindu undivided family. The High Court held that the notice was invalid as the assessment of income in the hands of the members of the family for the same year had not been set aside, and without doing so, the same income could not be taxed again in the hands of the family by proceeding under Section 34. On appeal, while remanding the matter back, it was pointed out by the Supreme Court that a Hindu undivided family was a distinct assessable entity and if its income had escaped assessment for any year, notice under Section 34 could issue. The court observed:
'It was then forcibly brought to our notice that the said view would be subversive of the doctrine of 'double taxation'. It was said that as the orders of assessment on the individual members or the said family hadbecome final, if the Income-tax Officer was permitted to assess the Hindu undivided family for the same assessment year, tax would be imposed on the same income twice over. It is true that the Act does not envisage taxation of the same income twice over 'on one passage of money in the form of one sort of income'. It is equally true that Section 14(1) of the Act expressly debars the imposition of tax on any part of the income of a Hindu undivided family received by its members. The fact that there is no provision in the Act dealing with a converse position does not affect the question, for the existence of such a converse position is legally impossible under the Act. So long as the Hindu undivided family exists, the individuals thereof cannot separately be assessed in respect of its income. None the less, if, under some mistake, such income was assessed to tax in the hands of the individual members, which should not have been done, when a proper assessment was made on the Hindu undivided family in respect of that income, the revenue had to make appropriate adjustments ; otherwise, the assessment made in respect of that income on the Hindu undivided family would be contrary to the provisions of the Act, particularly Section 14(1) of the Act We, therefore, hold that if the assessment proceedings initiated under Section 37 of the Act culminates in the assessment of the Hindu undivided family, appropriate adjustments have to be made by the Income-tax Officer in respect of the tax realised by the revenue in respect of that part of the income of the family assessed on the individuals of the said family. To do so is not to reopen the final orders of assessment, but in reality to arrive at the correct figure of tax payable by the Hindu undivided family.........
These cases, except Jothi Prasad Agarwal's case, : 37ITR107(All) accept the principle that the Income-tax Officer has jurisdiction to initiate proceedings under Section 34 of the Act, if the conditions laid down therein are complied with, against a person on the ground that the income, though it has been assessed in the hands of another, has escaped assessment in his hands. They do not deal with the connected question, how the adjustments will have to be made to avoid double taxation of the same income. The only question that arises at the time the Income-tax Officer proposes to take proceedings under Section 34 of the Act is, whether the income has escaped assessment or has been under-assessed in the hands of the person against whom the said proceedings are initiated. At that stage, the question of resolving the conflict between the proposed assessment and an earlier assessment made on a wrong person does not arise.'
14. The principle of those decisions cited by the revenue is helpful to repel the appellant's contention, although they may not be directly in point. In the light of these, we are unable to hold that exhibits P-3 andP-4 orders would bar the Income-tax Officer from proceeding to reassess the net wealth under the provisions of the Wealth-tax Act.
15. Nor are we impressed by the argument that it exhibits P-3 and P-4 orders were really wrong on facts of in law, the appropriate remedy should have been rectification under Section 35 of the Act and not reassessment under Section 17. As noticed by the Allahabad High Court in Hira Lal Sutwala v. Commissioner of Income-tax, : 56ITR339(All) and in Chowdbary Mithoo Missar v. Commissioner of Income-tax, : 18ITR530(All) it is possible that the spheres of operation of rectification and reassessment may sometimes overlap.
16. Counsel for the appellant contended that, while dealing with the Wealth-tax Act, it would be wrong to invoke the principles laid down by the judicial decisions with respect to the provisions of the Income-tax Act, 1922, or the later Act of 1961. In particular, it was pointed out that the Explanation to the reassessment section in the Income-tax Acts (section 34 of the 1922 Act and Section 147 of the 1961 Act) which provides that production of account books or other evidence before the Income-tax Officer from which material facts could with due diligence have been discovered, will not necessarily amount to a full and true disclosure within the meaning of the section, was absent in Section 17 of the Wealth-tax Act. It would be useful in this connection to recall the observations of the Supreme Court in Kantamani Venkata Narayana's case, : 63ITR638(SC) . The Supreme Court observed that while the terms of the Explanation to Section 34 are too plain to permit an argument that the assessee's duty of full and true disclosure is discharged by production of account books, what was provided by the Explanation was implicit in the terms of Sections 23 and 34 of the Income-tax Act itself. These provisions of the Indian Income-tax Act of 1922 find their counterpart in Sections 14 and 17 of the Wealth-tax Act. The Explanation to Section 34 of the 1922 Act (and to Section 147 of the 1961 Act) having only made explicit what was really implicit in Sections 23 and 34, corresponding to Sections 14 and 17 of the Wealth-tax Act, we do not think the absence of an Explanation in similar terms as the one to Sections 34 and 147 of the income-tax statutes makes any difference.
17. We now turn to the last contention advanced by counsel for the appellant, namely, that action could possibly be taken only under Clause (b) of Section 17 and not under Clause (a), and that, therefore, the reassessment proposed is beyond the time limit indicated by the section. We agree with the learned judge that, at this stage and on the facts disclosed, it would neither be fair nor proper for this court to prejudge the issue of limitation. It is open to the appellant in the first instance, in response to the notice, to take up the plea before the officer concerned that if reassessment proceedings are open at all, the same can only be under the provisions of Sub-clause (b), and not Sub-clause (a) of Section 17 of the Act, and that, in that event, the proceedings, or at least the best part of the same, would be beyond time. There is ample authority in support of the view that the question whether the reassessment is barred by time is to be left in the first instance to the taxing authorities. This court under Article 226 is not to enter into any detailed evaluation of the facts and the law. In Lalji Haridas v. R. H. Bhatt, : 55ITR415(SC) the Supreme Court observed :
'Mr. Pathak for the appellant attempted to argue that the notice issued against the appellant is, on the face of it, invalid, because it is barred by time. We did not allow Mr. Pathak to develop this point, because we took the view that a plea of this kind must ordinarily be taken before respondent No. 1 himself. The jurisdiction conferred on the High Court under Article 226 is not intended to supersede the jurisdiction and authority of the Income-tax Officers to deal with the merits of all the contentions that the assessees may raise before them, and so it would be entirely inappropriate to permit an assessee to move the High Court under Article 226 and contend that a notice issued against him is barred by time. That is a matter which the income-tax authorities must consider on the merits in the light of the relevant evidence.'
18. To the same effect is the decision of this court in Income-tax Officer v. R.M. Subramania Iyer, : 77ITR453(Ker) where the Supreme Court decision was followed.
19. We dismiss this writ appeal but make no order as to costs. O.P. No. 263 of 1971.
20. The petitioner in this writ petition is the same as the appellant inWrit Appeal No. 536 of 1973. The challenge is against exhibits P-9 to P-12notices dated January 16, 1971, for reassessment under Section 148 of theIncome-tax Act, 1961, for the assessment years 1962-63, 1963-64, 1964-65,and 1965-66. Exhibits P-1 to P-4 are copies of the individual assessmentson the petitioner in respect of these years which did not take into accountthe income from the trusts. These are dated August 31, 1964, June 25,1965, October 31, 1968, and October 31, 1968, respectively. Exhibits P-5to P-8 are copies of the assessment orders on the trust in respect of theidentical period where the income from the trusts has been taken note of.These are dated October 31, 1968, February 7, 1968, October 31, 1968, andOctober 31, 1968, respectively. Paragraph 6 of the counter-affidavit hadstated that the State Bank of India took steps for rectification of themistake by filing revison petitions before the Commissioner of Income-tax,and that the Commissioner by his order dated July 23, 1971, in RevisionPetitions Nos. 167 to 170 of 1969-70 set aside the assessment for the years196-1-65, iy65-66, 1966-67 and 1967-68 with direction to make fresh assessments.
21. On these facts, practically the same contentions which were advanced before us in the writ appeal were raised. For reason? given while dealing with the writ appeal, we would reject these contentions. In particular, it was urged that whatever be the position in regard to the assessment for 1963-64 and subsequent years, the proposed reassessment for 1962-63 is beyond the time limit provided by the section. This was on the ground that on the statement in paragraph 6 of the counter-affidavit, only the assessments for 1964-65 to 1967-68 were set aside by the Commissioner, and that, therefore, the assessments for 1962-63 and 1963-64 remained intact. It was, therefore, contended that no reassessment proceedings could be resorted to in respect of these assessment orders. We think that these contentions should appropriately be urged in the first instance before the Income-tax Officer. The materials are neither full nor adequate, nor the stage appropriate for us to pronounce on these aspects. We have called attention while dealing with Writ Appeal No. 536 of 1973 to the observations of the Supreme Court in Income-tax Officer v. Bachu Lal Kapoor.
22. We dismiss this writ petition, but without costs.