1. The four assessees in this case were partners in a firm called, S. V. M. Mohamed Jamaludeen and Brothers, Ceylon. But the partners were residing at Kilakarai in Ramnad district. On December 12, 1946, a company in the name and style of S. V. M. Mohamed Jamaludeen and Brothers (Ceylon) Ltd. was incorporated and this company took over the assets and liabilities of the firm as on January 19, 1947. The assessees were allotted shares in that company in proportion to their interest in the partnership. The assessees were in receipt of salary and dividends from the company. For the assessment years 1947-48 to 1953-54 the assessees submitted their returns as individuals disclosing the receipt of salary and dividends from the company. But the Income-tax Officer did not accept the changed state of affairs and invoking the provisions of Section 44D of the Indian Income-tax Act, 1922, deemed the partnership to have continued in existence. In this view, the assessment was made on the firm as if it had continued to exist for the assessment years 1947-48 to 1953-54. There were appeals by the firm. The Tribunal took the view that Section 44D was not applicable by its order dated March 9, 1957, reversing the order of the Appellate Assistant Commissioner who had confirmed the order of assessment. At the instance of the revenue a reference in Tax Case No. 38 of 1958 was made to this court on the question of applicability of Section 44D. When this reference was pending, the assessments for the assessment year 1960-61 were completed by the Income-tax Officer by his order dated December 30, 1960. In this order the Income-tax Officer proceeded on the basis that Section 44D was applicable. The decision of the Tribunal holding that Section 44D was not applicable was upheld by this court by judgment dated 26th September, 1961. The Income-tax Officer was then informed in the year 1962 by the Commissioner of Income-tax that no further appeal would be filed to the Supreme Court against the decision of the High Court and that the judgment of the High Court had been accepted. Consequent on the decision that Section 44D had no application, the Income-tax Officer felt that there was no share income to beadopted as arising out of the firm and that the amount of salary, bonusand dividends as returned by the assessce required to be assessed. Heaccordingly issued a notice'under section 148 proposing to revise theassessment under section 147(b), The assessees filed returns as requiredunder the notice and in section D of the return the amounts received assalary, bonus and dividend were shown. The assessments were completedincluding these amounts received as salary, bonus and dividends in theincome chargeable to tax. The assessee filed an appeal to the AppellateAssistant Commissioner contending that the action of the Income-tax Officerwas without jurisdiction, that by the time the original assessment was madeon December 30, 1960, the Tribunal had held that section 44D was notapplicable and, therefore, that information was available to him and therewas no fresh information that came to the possession of the Income-taxOfficer subsequent to his order dated December 30, 1960. The AppellateAssistant Commissioner held that the High Court's order dated September 26,1961, confirming the Tribunal's view that Section 44D is not applicable andthe information of the Commissioner of Income-tax that the department isnot filing any appeal against the order of the High Court and that it hadaccepted the judgment, constituted an information within Section 147(b)and that, therefore, the Income-tax Officer was within his jurisdiction inproposing to revise the assessment. But the Tribunal took the view thateven at the time when the original assessment order was made the Tribunalhad expressed the view that Section 44D was not applicable in its orderdated March 9, 1957 and, therefore, there was no fresh informationsubsequent to the assessment order when the High Court confirmed theview of the Tribunal. At the instance of the revenue the followingcommon question has been referred with reference to the assessment oneach one of these partners:
'Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the assessment for 1960-61 was not validly reopened under Section 147(b) of the Act ?.'
2. Under Section 147(b) if the Income-tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may reassess such income. It is now almost a settled view that any view expressed on a question of law which is in variance with the view on which the assessment order proceeded would constitute an information within the meaning of Section 147(b). But what the learned counsel for the assessee would contend is that if at all the view that Section 44D was not applicable was there in the possession of the Income-tax Officer even at the time when the original order was made on December 30, 1960, and, therefore, when he issued the notice subsequently it would only amount to a change ofview which will not clothe him with any jurisdiction to proceed under Section 147(b). But, as already pointed out, there was a reference to this court pending at the instance of the revenue on the question of applicability of Section 44D, and, therefore, the Income-tax Officer considered that the view of the Tribunal had not become final and binding on him and that, therefore, he would proceed on his earlier view that Section 44D was applicable and accordingly made the assessments on December 30, 1960, It is only when the High Court's order confirmed the Tribunal's order on September 26, 1961, and the Commissioner informed the Income-tax Officer that the department had accepted the view of the High Court and is not filing any appeal to the Supreme Court, the Income-tax Officer could consider that the omission to include the income from salary and dividend from the company in the individual assessment and treating them as share income was not correct. At the time when the question of applicability of Section 44D was pending consideration in the reference before this court, the order of the Tribunal had not become final in view of Section 33(6). The Income-tax Officer was still holding the view, since the order of the Tribunal had not become final, that Section 44D was applicable. If that view of the Income-tax Officer is correct, there was no escapement of any income chargeable to tax. Only when a decision was given finally that Section 44D was not applicable, the Income-tax Officer could consider that the income chargeable to tax had escaped assessment. It is because of this position the Income-tax Officer did not take into account the earlier order of the Income-tax Tribunal and proceeded to make the original assessment on the basis that Section 44D is applicable. The final decision of the High Court was definitely subsequent to the original assessment and that opinion led the Income-tax Officer to believe that income chargeable to tax has escaped assessment, and that certainly clothes the Income-tax Officer with jurisdiction under Section 147(b).
3. For the foregoing reasons we hold that the assessment for 1960-61 was validly reopened under Section 147(b) and answer the reference in the negative and in favour of the revenue. The revenue will be entitled to the costs. Counsel's fee Ks. 250.