Walter Salis Schwabe, C.J.
1. In this case the assessee made a return for. income tax and super-tax purposes in the beginning of the year 1921-1922. At first, he was assessed both to income-tax and super-tax, but he satisfied the authorities that the figure that they had taken was too large, and they reduced the assessment down to an amount which would involve the payment of income-tax only, that is to say, below the minimum super-tax amount. Under the scheme of Income-tax and super-tax then in force, to be found in Act VII of 1918, the Amending Acts and the Super-tax Act of 1920, for both income-tax and super-tax there was an adjustment at the end of the year; so that, if the anticipated income which was based on the preceding year's income and was the, basis of the preliminary original assessment was found by the result of the year's trading to be wrong--either 'too large or too small--the matter was adjusted by returning any amount overpaid or demanding any amount underpaid. By the Income-Tax Act of 1922, this system was abolished for the future; it adopted the system of making an assessment on the preceding year's actual income and treating that as the hypothetical income for the year of assessment--one which could not, as a general rule, be altered. The result of that was that, for the year 1921-1922, there would still have to be the adjustment at the end of the year so as to arrive at the proper income-tax for that year and that the final figure arrived at as the final income for that year would also afford a basis for the hypothetical income of the next year. As this principle of adjusting referred to above was to be abolished, the old Acts were repealed; but provision was made for the transition year 1921-1922 by preserving certain sections of the Old Act for that purpose and that purpose only. The provision is found in Section 68 of the 1922 Act as amended by Act XV of 1923 the amendment being made so that it might be clear that it was intended that the provisos to Section 68, keeping alive certain sections of the old Act for the purposes of assessment for the year ending the 31st March 1922, should apply to super-tax as well as income-tax.
2. It is argued that notwithstanding all these precautions, what Las happened is this that anyone, who having made a return was assessed for a sum less than the minimum on which super-tax is payable and, therefore, was neither asked for nor paid super-tax, although in fact, it was subsequently discovered that the income for that year had been such as to go over the minimum, can escape super-tax altogether. Looking at Section, 19 of the Act VII of 1918, so far from that being the case, in my judgment, it is quite plain that the contrary was intended. The section has a perfectly clear meaning and it is. that, if the total income actually received has been ascertained by the Collector, the Collector is to compute the income-tax and super 4ax which would have been payable if income-tax and super-tax had been levied in the previous year with reference to the true amount of the income so ascertained; and then the difference between the sum so computed and the aggregate of the sums already paid by the assessee for the previous year' ought to be paid by or refunded to the asses-sees as the case may be. That seems to give an easy sum to be worked out. The sum that should have been paid for super-tax in the preceding year, if the right figure had been before the Collector, is computed, and from that is deducted any sum that has already been paid for super-tax. If no sum has been paid for super-tax then there is no deduction to be made. That is the perfectly plain meaning of the section and I see no reason whatever for the suggestion that we have to strain the meaning of that section and read it as though there were a proviso to it, viz., 'provided always that, if no super-tax or income-tax had been demanded or paid for the previous year on the provisional assessment then nothing shall be payable for the year of assessment.' It was argued that before the coming into operation of the Act of 1922, by reason of the suggested interpretation of Section 19, the Crown had to have recourse, in oases where there had been no provision for super-tax, to Section 25 under which the assessee could be made to pay. But it is said that Section 25 having been repealed by the Income-tax Act of 1922, that remedy for the Crown is gone. In my judgment, that contention also is gone because Section 25 of the Act of 1918 has now been re-enacted by Section 34 of the Act of 1922, and Section 34 in words applies not only to the present and future but to the past. It says if for any reason the income chargeable to income-tax has escaped assessment m any year or has been assessed at too low a rate the Income-tax Officer can at any time within the year take the necessary steps. It follows, in my judgment, that even if the assessee could escape under Section 19, he would not escape under Section 34.
3. The answer to the question referred to us is in the affirmative. The assessee will pay the costs of this reference.
4. I agree and have nothing to add.