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T.S. Santhanam Vs. Expenditure-tax Officer - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 350 of 1972
Judge
Reported in[1976]104ITR355(Mad)
ActsExpenditure Tax Act, 1958 - Sections 4 and 16
AppellantT.S. Santhanam
RespondentExpenditure-tax Officer
Appellant AdvocateS. Swaminathan and ;K. Ramagopal, Advs.
Respondent AdvocateV. Balasubrahmanyan and ;J. Jayaraman, Advs.
Cases ReferredOfficer v. Nawab Mir Barkat Ali Khan Bahadur
Excerpt:
direct taxation - assessment - sections 4 and 16 of expenditure tax act, 1958 - appeal against order passed by single judge dismissing petition for restraining respondent from making revised assessment - respondent secured necessary information that there was escapement of tax - respondent have jurisdiction to issue notice under section 16 (b) - no reason to interfere with order passed by court below - appeal liable to be dismissed. - - the learned counsel for the respondent submitted that this is a case where the expenditure-tax officer had information showing that expenditure chargeable to tux had escaped assesement and that he was, therefore, well within his rights in reopening the assessment. the said finding necessarily implies that the income-tax officer had no reason to.....sethuraman, j.1. this is an appeal against the order of ramaprasada rao j. in writ petition no. 3582 of 1967--t. s. santhanam v. expenditure-tax officer : [1973]87itr582(mad) . the appellant was the writ petitioner, who sought a writ of prohibition for restraining the respondent from making a revised assessment on him in pursuance of a notice under section 15(4) read with section 16(b) of the expenditure-tax act, dated october 25, 1968. the learned judge declined to issue the writ and hence this appeal.2. the facts are in a short compass. the assessment year under consideration is 1961-62, the relevant previous year ending on march 31, 1961. the assessee along with his four sons constituted a joint hindu family, which was partitioned in june, 1957. after the partition, the petitioner.....
Judgment:

Sethuraman, J.

1. This is an appeal against the order of Ramaprasada Rao J. in Writ Petition No. 3582 of 1967--T. S. Santhanam v. Expenditure-tax Officer : [1973]87ITR582(Mad) . The appellant was the writ petitioner, who sought a writ of prohibition for restraining the respondent from making a revised assessment on him in pursuance of a notice under Section 15(4) read with Section 16(b) of the Expenditure-tax Act, dated October 25, 1968. The learned judge declined to issue the writ and hence this appeal.

2. The facts are in a short compass. The assessment year under consideration is 1961-62, the relevant previous year ending on March 31, 1961. The assessee along with his four sons constituted a joint Hindu family, which was partitioned in June, 1957. After the partition, the petitioner submitted a return under the Expenditure-tax Act with his status as 'individual' and declaring a taxable expenditure of Rs. 19,559. During the relevant previous year he performed his daughter's marriage on September 2, 1960, in which a sum of Rs. 86,923 was incurred as expenditure. Out of the said sum Rs. 25,631 was spent by him and Rs. 61,292 was spent by his four divided sons.. The Expenditure-tax Officer completed the assessment for this year en December 19, 1962, and in the course of the said assessment he considered the question as to whether the expenses incurred by the sons could be included in the taxable expenditure of the petitioner under Section 4(i) of the Act. That provision may be extracted and it runs as follows:

'4. Amount to be included in taxable expenditure. Unless otherwise provided in Section 5, the following amounts shall be included in computing the expenditure of an assessee liable to tax under this Act, namely:--

(i) any expenditure incurred, whether directly or indirectly by any person other than the assessee in respect of any obligation or personal requirement of the assessee or any of his dependants to the extent to which the amount of all such expenditure in the aggregate exceeds Rs. 5,000 in any year;

(ii) where the assessee is an individual, any expenditure incurred by any dependant of the assessee, and where the assessee is a Hindu undivided family, any expenditure incurred by any dependant from or out of any income or property transferred directly or indirectly to the dependant by the assessee.

Explanation.--For the removal of doubts it is hereby declared that nothing contained in this section shall be deemed to require the inclusion in the expenditure of the assessee of any expenditure incurred by any other person for or on behalf of the assessee by way of customary hospitality or which is of a trivial or inconsequential nature'.

3. For our present purpose it is unnecessary to go into the reasons, given by him for invoking Section 4(i) of the Act. It is enough to mention that out of the said sum of Rs. 61,292 a sum of Rs. 10,000 was taken as the value of the customary presents given by the sons at the time of their sister's marriage and that the balance of Rs. 51,292 was included in the assessment under Section 4(i) of the Act. In the appeal to the Appellate Assistant Commissioner, the petitioner succeeded. At the instance of the Expenditure-tax Officer the matter was taken on appeal to the Appellate Tribunal. The Tribunal extracted Section 4(i) of the Act in the course of its order and observed as follows:

'The question, therefore, is whether the expenditure incurred by the assessee's sons was in respect of an obligation of the assessee which wouldhave been incurred by him but for the expenditure incurred by his sons. In other words, was the assessee himself under an obligation to incur the expenditure which was actually incurred by his sons This question could bo answered in different ways.....

In any view of the matter, therefore, the assessee is not liable to be assessed on the amount of Rs. 51,292 spent by his sons on the marriage of his daughter. The Appellate Assistant Commissioner was quite right in deleting this amount from the assessment and there is no need to interfere with his order'.

4. The Tribunal considered that the petitioner was under no obligation to incur any expenditure in connection with his daughter's marriage and that he was under a much less obligation to incur the extra expenditure made by his sons, in this view of the matter, it held that the petitioner was not liable to any assessment in respect of the sum of Rs. 51,292.

5. The order of the Tribunal was communicated to the Commissioner of Income-tax, who under Section 25(i) of the Act, could file an application for reference. The Commissioner accepted the Tribunal's decisions and in a memorandum dated May 24, 1965, a copy of which was communicated to the Expenditure-tax Officer, observed as follows:

'The Expenditure-tax Officer will please take action under Section 16 of the Expenditure-tax Act for the assessment year 1961-62, to include the expenditure incurred by the assessee's minor sons in connection with their sister's marriage in the taxable expenditure, of the assessee under Section 4(ii) of the Act. The Expenditure-tax Officer's attention is also invited to the decision of the Andhra Pradesh High Court in His Highness Prince Azam Jah v. Expenditure-tax Officer : [1965]55ITR230(AP) . A report may please be sent after the proceedings are initiated'.

6. On July 15, 1965, the Expenditure-tax Officer issued a notice under Section 16 of the Act requiring the petitioner to submit a return within 30 days from the date of the service of the notice. The petitioner in reply referred to the earlier proceedings relating to the same assessment year and contended in his letter dated August 14, 1965, that the expenditure of the sons was not included in his expenses. There was a reply from the Expenditure-tax Officer on October 25, 1967, under which time was given to submit the return by October 30, 1967, which was further extended up to December 7, 1967. In November, 1967, the petitioner came forward with a writ petition.

7. The contention taken before the learned judge was that the Expenditure-tax Officer could not reopen the proceedings already concluded, which had become final. The learned judge held, after discussing the cases cited before him by both the sides, as follows :

'If, therefore, Section 4(i) was mistakenly invoked by the revenue on an earlier occasion and if such invocation was discovered later, no one can compel a statutory body to take such a circumstance lying down and ignore the impact of Section 4(u) arid the force of its application. In any event the respondent cannot be interdicted at the threshold from proceeding with the enquiry'. (See page : [1973]87ITR582(Mad) --T. S. Santhanam v. Expenditure-tax Officer, Company Circle II(1), Madras).

8. The learned judge considered that the respondent had secured the necessary information and in consequence entertained the belief that there was an escapement of tax. He, therefore, did not think it proper to prevent the respondent from proceeding further with the impugned notice issued earlier. He, therefore, dismissed the writ petition.

9. In the present appeal the learned counsel for the appellant submitted that the finality of the order of the Tribunal in the earlier proceedings for the same year cannot be disturbed by any proceedings taken under Section 16(b) of the Act and that merely because the Expenditure-tax Officer had second thoughts or changed his opinion with reference to the identical amount, he could not take recourse to Section 16(b) of the Act. It was further submitted that where the assessment was made under one provision it could not be said that any expenditure had escaped assessment to justify the assessment under another provision. The learned counsel for the respondent submitted that this is a case where the Expenditure-tax Officer had information showing that expenditure chargeable to tux had escaped assesement and that he was, therefore, well within his rights in reopening the assessment. The finality attached to the Tribunal's order, it was submitted, did not in any mauner affect the power of the Expenditure-tax Officer to reopen the assessment in accordance with the terms of Section 16(b) of the Act. In other words, the finality attributed to the Tribunal's order and the power to reopen under Section 16 of the Act were said to be distinct and separate.

10. We shall first consider the point stressed by the learned counsel for the petitioner regarding the finality attached to the Tribunal's order as affecting the scope of the powers of the Income-tax Officer under Section 16(b) of the Act. In Commissioner of Income-tax v. Rao Thakur Narayan Singh, : [1965]56ITR234(SC) , the Supreme Court had to deal with a rather unusual case. For the assessment year 1942-43, the Income-tax Officer made a reassessment in July, 1945, by applying Section 34 of the Indian income-tax Act, 1922, and brought to tax forest income and interest income. At the time of this assessment the assessee contended that his forest income was not taxable. The Income-tax Officer did not accept this objection of the assessee, and the matter eventually reached the Appellate Tribunal.

11. Before the Tribunal the assessee did not raise any dispute regarding the interest income, but objected to the forest income being taxed and also to Section 34 being invoked. According to the assessee, the Income-tax Officer had knowledge of the forest income even at the time of the original assessment, so that he could not reopen it under Section 34 of the Act. The Tribunal was of the opinion that the proceedings under Section 34 of the Act were not valid and set aside the reassessment and restored the original assessment. The decision of the Tribunal was given on April 25, 1949. On January 3, 1950, the Income-tax Officer initiated proceedings under Section 34 of the Act in order to bring the interest income to tax. He could have applied, but he did not do so, to the Tribunal for rectifying its order in so far as it related to setting aside the assessment on the interest income also, which was not in dispute before it. He eventually completed the reassessment which was thus initiated and brought to tax the interest income. The matter was taken on appeal and it ultimately reached the Supreme Court, which hold at page 238 as follows:

'Therefore, the decision of the Tribunal in respect of the subject-matter under appeal before it is final and cannot be reopened by the assessee or the department'

12. Further down in the same page it was observed as follows:

'.....it follows that the order of the Tribunal on the said question,namely, that the whole order of reassessment under Section 34 of the Act was invalid as there was no 'discovery' that the relevant income escaped assessment, had become final.'

13. Again at page 239 the Supreme Court observed as follows:

'The Tribunal held in the earlier proceedings that the Income-tax Officer knew all the facts at the time he made the original assessment in regard to the income he later on sought to tax. The said finding necessarily implies that the Income-tax Officer had no reason to believe that because of the assessce's failure to disclose the facts, income has escaped assessment. The earlitr finding is comprehensive enough to negative 'any such reason' on the part of the Income-tax Officer. That finding is binding on him. He could not on the same facts reopen the proceedings on the ground that he had new information. If he did so, it would be a clear attempt to circumvent the said order, which had become final. We are not concerned in this appeal with a case where the Income-tax Officer got now information which he did not have at the time when the Tribunal made the order.'

14. The decision clearly shows that the Income-tax Officer cannot reopen the assessment on the same facts over again. The last sentence in the above extract, however, points out that the position of the Income-tax Officer having new information before him, which he did not have at thetime of the Tribunal's order, would be different. The attempt of the revenue in this case was to show that the Expenditure-tax Officer had new information, which he got from the Commissioner and that the present case is thus within the scope of the reservation made by the Supreme Court. We consider that there is substance in the contention of the revenue in this case.

15. We may now examine the question as to whether the Expenditure-tax Officer had 'information' which justified the reopening of the assessment under Section 16(b) of the Act. Section 16 of the Act has its parallel in the Income-tax Act, namely, Section 34 of the Indian Income-tax Act, 1922, and Section 147 of the Income-tax Act, 1961. The scope of those provisions have been the subject of several decisions by the Supreme Couit. In Commissioner of Income-tax v. A. Raman and Co., : [1968]67ITR11(SC) the Supreme Court was considering an appeal from the proceedings under article 226 of the Constitution in a case where the assessee sought to challenge the validity of the notice issued under Section 147(b) of the Act. Regarding the scope of the jurisdiction of the Income-tax Officer, the Supreme Court observed at page 16 as follows :

'Jurisdiction of the Income-tax Officer to reassess income arises if he has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment. That information must, it is true, have come 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.' (Underlined by us).

16. This passage has been substantially repeated in Commissioner of Income-tax v. Dinesh Chandra H. Shah, : [1971]82ITR367(SC) . The above passage from the Supreme Court decision would clearly show that even if the Expenditure-tax Officer could have, by research into law, applied his mind to Section 4(ii) of the Act even at the time of the original assessment, but did not do so, his jurisdiction to reopen under Section 16(b) of the Act is not affected. Therefore, the fact that Section 4(ii) was in the statute book at all material times, which was not invoked by the Expenditure-tax Officer, does not deprive him of the jurisdiction to reopen the assessment so long as Section 16(b) authorised such a reopening.

17. It is now well-settled that 'information' contemplated by a statutory provision includes 'information' as to law. In the present case the memorandum which was communicated to the Expenditure-tax Officer drew his attention to a decision bearing on the applicability of Section 4(ii) of the Act. When the Commissioner communicated this information, the decision had been rendered only by the Andhra Pradesh High Court as reported in His Highness Prince Azam Jak v. Expenditure-tax Officer. This decision of Jaganmohan Reddy J. was affirmed by the Supreme Court on appeal and the Supreme Court decision is H. H. Prince Azam Jah Bahadur v. Expenditure-tax Officer. There can thus be no dispute that there was information on a point of law communicated to the Income-tax Officer, which would come within the scope of Section 16(b) of the Act.

18. It was submitted that the Commissioner could not give directions to reopen the assessment to the Expenditure-tax Officer in the manner done by him in his memorandum d.ated May 24, 1965. We consider that the Expenditure-tax Officer treated this memorandum only as a piece of information. Whether the Commissioner could give directions to the Expenditure-tax Officer to reopen the assessment under Section 16(b) of the Act, is not a matter which can be raised in the present proceedings. As the Commissioner is not the respondent before us and the memorandum dated May 25, 1965, is not really the subject-matter of the present writ proceedings, it is unnecessary to go into this aspect further,

19. The point now before us appears to be covered by the decision of the Supreme Court in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax, : [1959]35ITR1(SC) . In that case, for the assessment year 1945-46, the Income-tax Officer considered the question as to whether a sum of Rs. 93,604 received by the assesses on account of interest on arrears of agricultural rent due to him was liable to tax under the Indian Income-tax Act. The assessee objected to the said amount being assessed relying on the decision of the Patna High Court. The Income-tax Officer did not consider himself bound by the said decision as the matter was on appeal before the Privy Council. In the result, he included the said amount in the total income of the assessee; but, however, directed that the realisation of the tax on the said amount should be stayed till the decision of the Privy Council. The assessee appealed against this assessment to the Appellate Assistant Commissioner, who held that the Income-tax Officer was bound to follow the High Court decision in the aforesaid case. He, therefore, directed the Income-tax Officer to make a fresh assessment after setting aside the one under appeal. The Income-tax Officer then passed a fresh assessment order in accordance with the directions of the Appellate Assistant Commissioner and he did not include the said sum of Rs. 93,604. The department did not appeal against the order of the Appellate Assistant Commissioner before the Tribunal. The decision of the Patna High Court mentioned above was reversed by the Privy Council, whose decision is reported in Kamakshya Narayan Singh's case. As a result of the decision, the Income-tax Officer issued a fresh notice under Section 34 of the Indian Income-tax Act and proceeded to make a reassessment, including the said sum of Rs, 93,604. The matter, thereafter, reached the Supreme Court. One of the contentions taken before the Supreme Court was regarding the scope of Section 34(1)(b) of the Act. At page 5 of the report, the Supreme Court observed after reproducing the Section as follows :

'It is clear that two conditions must be satisfied before the Income-tax Officer can act under Section 34(1)(b). He must have information in his possession, which, in the context, means that the relevant information must have come into his possession subsequent to the making of the assessment order in question and this information must lead to his belief that income chargeable to income-tax has escaped assessment for any year.....'

20. At page 6, the Supreme Court held that the word 'information' includes information as to facts as well as information as to the state of the law and at page 8 it was observed as follows:

'There is no doubt that a part of the assessee's income had not been assessed and, in that sense, it has clearly escaped assessment. Can it be said that, because the matter was considered and decided on the merits in the light of the binding authority of the decision of the Patna High Court, no income has escaped assessment when the said Patna High Court decision has been subsequently reversed by the Privy Council We see no justification for holding that cases of income escaping assessment must always be cases where income has not been assessed owing to inadvertence or oversight or owing to the fact that no return has been submitted. In our opinion, even in a case where a return has been submitted, if the Income-tax Officer erroneously fails to tax a part of assessable income, it is a case where the said part of the income has escaped assessment. The appellant's attempt to put a very narrow and artificial limitation on the meaning of the word 'escape' in Section 34(1)(b) cannot therefore succeed.'

21. In the above case also the income assessed by the Income-tax Officer was deleted on appeal by the Appellate Assistant Commissioner. After the order of the Appellate Assistant Commissioner, the Income-tax Officer reopened the assessment. The income sought to be reassessed was the same. The reason for including it in the assessment was also the same, viz., that interest on arrears of agricultural rent did not have the character of agricultural income. On such facts the Supreme Court has held that the reassessment was proper, as the decision of the Privy Council subsequentto the conclusion of the earlier proceedings constituted information. The learned counsel for the appellant sought to distinguish this decision by contending that in the present case the matter had reached the Tribunal and had not rested with the order of the Appellate Assistant Commissioner. According to him, no finality was attached to an order of the Appellate Assistant Commissioner, while the statute conferred a finality on the order of the Appellate Tribunal under Section 22(7) of the Expenditure-tax Act. We are unable to accept this submission. The finality attached to the Tribunal's order, would only ensure that the Income-tax Officer cannot reopen the proceedings for the same reasons as were considered earlier. The finality would attach only to the findings of the Tribunal in so far as Section 4(i) of the Act was concerned. There could be no question of any finality attaching to the Tribunal's order relating to Section 4(ii) of the Act, as that provision was never in the mind of any of the authorities till we come to the present notice. Section 22(7) of the Act provides that save as provided in Section 25 any order passed by the Appellate Tribunal on appeal shall be final. It is only the Tribunal's order that is final. In so far as the Tribunal did not have any occasion to go into Section 4(ii) of the Act, there is no order of the Tribunal which could have attained any finality. The distinction between the present case and the case reported in Commissioner of Income-tax v. Rao Thakur Narayan Singh mentioned already is that in the case in Commissioner of Income-tax v. Rao Thakur Narayan Singh the Tribunal had held that Section 34 could not be applied as there was no discovery by the Income-tax Officer. Where there is information which is extraneous to what had happened earlier, then the power under Section 16(b) of the Act is not affected.

22. The learned counsel for the appellant relied on certain other decisionswhich we may briefly consider. In Commissioner of Income-tax v. BurlopDealers Ltd., : [1971]79ITR609(SC) , the Supreme Court was concerned with the applicability of Section 34(lXa) of the Act. In that case, for the assessment year 1949-50,the assessee-company disclosed a profit of I'76 lakhs of rupees from a jointventure and claimed that half of it was paid to one Ratiram under anagreement dated October 7, 1948, for financing the transaction in the jointventure. The Income-tax Officer accepted this claim of the assessee andbrought to tax only one half of the sum of Rs. 1,76,000. For the assessment year 1950-51, before the Income-tax Officer there was a similarclaim. The matter was re-examined and it was held that the agreementof October 7, 1948, was a sham transaction, got up as a device to reduceprofits. So, in the assessment for 1950-51, the assessee's claim for deduction was not accepted. The Income-tax Officer thereafter reopened theproceedings for 1949-50, under Section 34(1)(a) of the Act of 1922, so as to bring to tax the other half which had been allowed as deduction. Dealing with the challenge to this reassessment, at page 612, the Supreme Court observed as follows:

'The Income-tax Officer had, in consequence of information in his possession that the agreement with Ratiram Tansukhrai was a sham transaction, reason to believe that income chargeable to tax had escaped assessment. Such a case would appropriately fall under Section 34(1)(b). But the period prescribed for serving a notice under Section 34(1)(b) had elapsed.'

23. The Supreme Court negatived the application of Section 34(1)(a) of the Act on the ground that the assessee had disclosed all the material facts. In effect, the Supreme Court held that there was no duty cast on the assessee to draw the attention of the Income-tax Officer to the possibility of the transaction being sham. When all the facts were before the Income-tax Officer and when he accepted the transaction as genuine, it would not later be open to the Income-tax Officer to seek to reverse his own view, merely because he had taken a different view in another assessment year. This case is not of assistance to the appellant herein, as we are not concerned with any case under Section 34(1 Xa) of the Act. In fact, it says that the Income-tax Officer could reopen the proceedings under Section 34(1 Xb) corresponding to Section 16(b) of this Act.

24. The appellant's counsel sought support from Commissioner of Wealth-tax v. Manilal C. Desai, : [1973]91ITR135(MP) . That arose under a parallel provision, viz., Section 17(1)(b) of the Wealth-tax Act. In that case the assessee was a partner in a firm. The amounts standing in the name of his wife were included as his own money and the interest realised thereon was included as his own income. The assessee, however, filed his wealth-tax returns claiming exemption for the amounts standing in the name of his wife. The Wealth-tax Officer accepted this claim. Later on, he sought to take proceedings under Section 17. The reassessment was sought to be justified both under Section 17(1)(a) and Section 17(1)(b) of the Act. The applicability of Section 17(1)(a) was negatived, but that is not relevant for our purpose. As regards the applicability of Section 17(1)(b) of the Act it was observed that now positive information was shown to have come to the knowledge of the assessing officer. When there was no information, Section 17(1)(b) could not have been applied. In the present case, as we have already pointed out, there is information. The decision does not lay down that even if there was information, the assessment cannot be reopened.

25. In T. S. Srinivasan v. Commissioner of Expenditure-tax : [1974]93ITR146(Mad) , this court was concerned with the assessment of a brother of the appellant for the assessment years 1959-60 and 1960-61. There was a partition in the family of which the assesses in that case was the karta in December, 1959. The question that arose for consideration was whether the amount spent by the wife and children out of the properties allotted to them on partition was liable to be included in the assessment of the said assessee for those years. The assessee filed returns as an individual and also as karta of the family up to the date of partition for those years. In the returns filed as individual the assessee had not included the expenditure incurred by his wife and children. The Expenditure-tax Officer accepted the return as 'individual' in so far as those items of expenditure are concerned. As regards joint family, he considered the expenditure incurred by the wife and minor children, but ultimately, did not actually assess the joint family thereon, because the expenditure was well within the exemption limit. He later on sought to take proceedings under Section 16(b) of the Act against the individual, and the legality of the application under Section 16(b) of the Act was challenged before this court. In the decision, to which one of us was a party, this court held at page 155 as follows :

'Admittedly, the Expenditure-tax Officer, in this case, was aware of the said two items of expenditure and he considered them to be the expenditure of the Hindu undivided family. The mere fact that the assessee did not show it in his individual returns but showed it in the returns filed as the karta of the Hindu undivided family cannot make the contents of the assessee's letter dated January 12, 1961, fresh information in relation to his individual assessments.'

26. This is also a case where the finding was that there was no information which came into the possession of the Expenditure-tax Officer after he completed the original assessment. The present facts are different.

27. Our attention was also drawn to a recent decision of the Supreme Courtin Income-tax Officer v. Nawab Mir Barkat Ali Khan Bahadur, : [1974]97ITR239(SC) . The Nizamof Hyderbad had executed 3 trust deeds for the benefit of MazharunissaBegum, Laila Begum, Jani Begum and the minor children of the last two.In two of the trust deeds, the three ladies were described as his wives andthe children as his. In one of those documents, however, the descriptionof Laila Begum and Jani Begum as wives was preceded by the expression 'ladies of position'. Under section 16(3) of the Indian Income-tax Act, 1922,in computing the total income of any individual the income of the wife orminor children of the assessee, arising from assets transferred by him fortheir benefit otherwise than for adequate consideration, was liable to beincluded in his assessment. The Income-tax Officer accepted the casepresented on behalf of the Nizam that the 3 ladies were not actually thewives. He, therefore, did not include the income from the trust for their benefit as required by Section 16(3). In other words, he did not apply Section 16(3) because the beneficiaries were not the wives or minor children of the Nizam. Later on, the Income-tax Officer came across two other trust deeds in which these ladies had been referred to as the wives and the children of the Nizam. After the subsequent documents came to the notice of the Income-tax Officer, he sought to reopen the assessment under Section 147(a). The question before the Supreme Court was whether reopening of the assessment was proper. The Supreme Court held that the assessee had not omitted or failed to disclose fully and truly all the material facts and that consequently the Income-tax Officer had no jurisdiction to reopen the assessment. It was also held that having second thoughts on the same material did not warrant the initiation of proceedings under Section 147. This decision would have applied to the facts of the present case, if the present proceedings had been taken under Section 16(a) of the Expenditure-tax Act. The proceedings here are under Section 16(b). The requirements of the two provisions are so different that it would not be proper to apply the decision rendered under one provision to the other.

28. The learned counsel for the appellant submitted that the proper remedy for the Expenditure-tax Officer was to have taken the matter on reference to the High Court from the decision of the Tribunal, From the facts it appears that the Commissioner had ultimately no objection to the Tribunal's decision regarding Section 4(i). He, however, found that there was a decision of the Andhra Pradesh High Court which would justify the application of Section 4(ii}. Even if he had filed an application for reference against the order of the Tribunal in respect of the earlier assessments, he could not have raised any question regarding the applicability of Section 4(i), because the factual investigation necessary for the application of Section 4(ii) had not been made. The factual requirements for application of the two provisions are different. Therefore, any attempt at taking the matter on reference on the applicability of Section 4(ii) would have been met with the plea that the matter did not arise from the Tribunal's order. Therefore, the fsct that the income-tax department did not file any reference application against the order of the Tribunal does not affect the jurisdiction of the Income-tax Officer to issue the present notice.

29. The learned counsel for the appellant sought to raise a point that the return filed even initially as an 'individual' was wrong and that this is a case where the proper status for assessment should only be as Hindu undivided family. This is a matter which cannot be decided in the present writ proceedings and the appropriate forum for it is the Expenditure-tax Officer. If the assessee wants to raise any such plea, he should do so before him in the reassessment proceedings which would follow in the present notice.

30. In the result, we hold that there is ho lack of jurisdiction to issue notice under Section 16(b) of the Act, on the part of the respondent so as to warrant interference in writ proceedings. We agree with the learned judge in declining to issue the writ prayed for by the appellant. The appeal is dismissed with costs. Counsel's fee Rs. 250.


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