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PETITIONER: C.I.T. BOMBAY

       Vs.

RESPONDENT: ONKARMAL MEGHRAJ (H.U.F.) & ORS.

DATE OF JUDGMENT16/08/1973

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. KHANNA, HANS RAJ

CITATION:  1973 AIR 2585            1974 SCR  (1) 391  1974 SCC  (3) 349

ACT: Indian Income Tax (Amendment) Act 1953-J. 34(3)-Its scope.

HEADNOTE: 16 persons constituted a partnership firm under an agreement dated  19-5-1930.  Out of the 16 partners, 3 were  outsiders and  13 were members of 3 Hindu Undivided Families.   Though the firm consisted of 3 Hindu Undivided Families, the income tax  assessment till 1939-40 was on all the 16  individuals. From 1939-40 to 1941-42, the Income Tax Department assessed the  13 persons not as individuals but as 3 Hindu  Undivided Families. on the basis of a settlement betweer, them and the department.   After 1941-42, all the 16 persons were  to  be individually assessed.  Nevertheless, the Income Tax Officer proceeded  to  make  the asessment as  though  the  3  Hindu Undivided  Families  still continued.  The  members  of  the Hindu  Undivided Families disputed this and on  appeal,  the Income  Tax Appellate Tribunal directed that the  assessment for  the  year 1943-44 had to be made  or,  each  individual partner.   In respect of the year 1944-45, the  I.T.O.  had, meanwhile,  assessed the 3 H.U. Families as Hindu  Undivided Families by declaring the cases of the individuals as  cases of  "No assessment".  These assessments were,  however,  set aside  by the Appellate Assistant Commissioner according  to the directions given by the Tribunal earlier. After  receipt  of  the orders of  the  Appellate  Assistant Commissioner  the I.T.O. issued notices under s. 34  to  all the  13  persons in April 1954.  By that  time,  the  Indian Income-tax  (Amendment)  Act 1953, which  amended  s.  34(a) became operative retrospectively from 1-4-1952.  The notices under  s.  34  were  served  on  8th  April  1954  and   the assessments were made on 31-1-1955 on the footing that under that  Section, there was no time limit.  Both the  Appellate Assistant  Commissioner and Tribunal dismissed  the  appeals filed  by the assessees.  These assessments  were,  however, set  aside  by the Appellate  Assistant  Commis(i)  whether, having  regard  to  the directions given  by  the  Appellate Assistant  Commissioner,  and having regard  to  the  second proviso  to Section 34(3) as amended, the reassessment  made by  the I.T.O. on 31-1-1955 is, governed by  any  limitation period, such as mentioned in s. 34(3). (2)In   respect  of  4  other  assessees,  who   furnished

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individual  returns,  "whether the remedy available  to  the I.T.O.  had  already become time-barred under s.  34  before that Section wag amended in 1953 with retrospective effect." The High Court answered the questions in the affirmative and hence, the appeals before this Court. HELD:(i) The direction given by the Tribunal on 31-3-53 was  in respect of the assessment for 1943-44.   The  I.T.O. had  even  before  that date, assessed the  three  units  as H.U.F.,  for 1944-45 and passed an order of ’No  assessment’ in  respect of the individuals.  For that year also, all  of them  had  filed their returns as  individuals.   Therefore, there  was  no  question of omission or failure  to  make  a return or to disclose fully all material facts necessary for their assessment and escapement of assessment was not due to any such fact but due to the action of the I.T.O.  assessing non-existent  Hindu Undivided Families and passing an  order of  ’No  assessment’  in respect  of  individuals.   Section 34(1)(a) cannot, therefore, apply and only section 34(1) (b) can apply. [395D-F] (i)As regards the application of the second proviso to  s. 34(3), it applies only to the three individuals (Narayandas, Meghraj and Hanumandas) who filed returns as individuals but who  had been assessed as Hindu Undivided Families  and  who were  before  the Appellate Assistant Commissioner  and  the Tribunal 392 but  not to other eight respondents who were not parties  to the proceedings and there was no Hindu Undivided Families at that time-all these eight persons having filed their returns as individuals. [395F-396C] I.T.O.  v.  Murlidhar  Bhagwan Das, [1964]  52  I.T.R.  325, referred to. The  right  of  the I.T.O. to assess these  persons  can  be upheld  only if the notice under the substantive part of  s. 34  can be said to be a valid notice.  The  assessment  year being  1944-45, the notice under s. 34 issued in April  1954 was  beyond the period of 4 years under s. 34(1)(b) and  so, the second proviso to s. 34(3)  does  not  apply  to   them. [397A-B] (iii)The  effect of the amendment of s. 34 in  1953  is not  to enable the I.T.O. to take action under that  Section where  the  period  mentioned  therein  had  expired  before 1.4.1952.  In the case of the 3 assessees, however s.  34(3) would  apply, whether it is the old proviso or  the  proviso introduced in 1953. [398D-F] S.C. Prashar v. Vasantsen Dwarkadas, [1956] 29 I.T.R. 857 and  J.  P. Jani, I.T.O. v.  Inuduprasad  Devshanker  Bhatt, [1969]  72  I.  T. R. 595 and Income Tax Officer  v.  T.  S. Devinathan Nadar, [1968] 68 I.T.R. 252, referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION :-Civil Appeals Nos.  22632274 of 1969. Appeals by certificate from the Judgment and Order dated the 29th/30th  January, 1968 of the High Court of Judicature  at Bombay in Income Tax Reference No. 54 of 1958. T. A. Ramachandra and S. P. Nayar, for the appellant. Respondents Nos. 1 to 9, 10(iii), 11 and 12 did not appear. The Judgment of the Court was delivered by ALAGIRISWAMI,  J. Sixteen persons constituted a  partnership firm known as M/s.  Narayandas Kedarnath under an  agreement dated  19-5-1930.   Out of the said 16  persons  three  were outsiders and thirteen were members of three Hindu undivided

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families whose kartas were respectively Narayandas Pokarmal, Meghraj   Pokarmal  and  Hanumandas  Sewakram.    Narayandas Pokarmal  had three sons Govindram, Bhagwandas and  Vasudeo; Meghraj  Pokarmal had also three  sons-OnKarmal,  Banarsilal and  Beniprasad;  and  Hanumandas Sewakram  had  four  sons- Kedarnath,  Bnarsidas, Durgaprasad and Harkisondas.   Though the firm consisted of 3 undivided Hindu families the  income tax assessment till the year 1939-40 was on all the  sixteen individuals.  From 1939-40 to 1941-42 the Income-tax Officer assessed  these 13 persons not as individuals but  as  three Hindu  undivided  families  on the  basis  of  a  settlement between them and the Department.  Thereafter all the sixteen persons were to be individually assessed.  Nevertheless, the Income-tax  Officer  proceeded  to make  the  assessment  as though  the three HUFs still continued.  The members of  the HUFs disputed this and the Income-tax Appellate Tribunal  by an  order  dated 31-7-1953, relating to the appeals  by  the three  families  for the assessment year  1943-44,  directed that  the  assessment  bad to be  made  on  each  individual partner.   In  respect of the year  1944-45  the,  Incometax Officer had meanwhile assessed the three HUFs as HUFs by de- claring  the  cases  of  the individuals  as  cases  of  ’No Assessment’.  These 393 assessments  were  set aside by  the.   Appellate  Assistant Commissioner  who  followed  the  directions  given  by  the Tribunal in respect of the year 1943-44, on 9-3-1954. After the. receipt of the orders of the Appellate  Assistant Commissioner  the  Income-tax Officer issued  notices  under section  34  to  all  the 13 persons  in  April  1954  after obtaining  the  Commissioner’s approval.  By that  time  the Indian  Income-tax (Amendment) Act, 1953, which among  other things amended section 34(3), had come into effect on  24-5- 1953  but  had  retrospective  effect  from  1-4-1952.   The notices under section 34 were- served on or about 8th April, 1954  and  the  assessments were made on  31-1-1955  on  the footing  that  under that section there was no  time  limit. For the purpose of these assessments the three Kartas of the Hindu   undivided   families,   Narayandas,   Meghraj    and Hanumandas,  earlier  referred to, and  Beniprasad,  son  of Meghraj  had already filed their returns as individuals  and the others as HuFs.  It should be made clear that these  are the  HUFs consisting of,, the other 7 individuals and  their decendants, to which we shall hereafter refer as the smaller HUFS.  The Appellate Assistant Commissioner having dismissed their  appeals  there  were  11  appeals  to  the  Tribunal. Banarsidas and Harkisondas, sons of Hanumandas did not  file any appeal. The Tribunal held that all the eleven cases were governed by section  34(1)(a) and dismissed the appeals.   The  Tribunal thereafter  at  the  instance of the  parties  referred  the following questions to the High Court :               1.    Whether, having regard to’ the direction               given by the Appellate Assistant  Commissioner               in his order dated 9-3-1954 in the case of the               appropriate  H.U.Fs. and having regard to  the               second proviso to section 34(3) as amended  by               section  18 of the Indian  Income-tax  (Amend-               ment)  Act, 1953 the reassessment made by  the               Incometax Officer on 31-1-1955 in the case  of               any  one or more of the assessees is  governed               by any limitation period such as mentioned  in               the sugstantive part of section 34(3) ?               In  respect  of Narayandas  Pokarmal,  Meghrai               Pokarmal.   Beniprasad Meghraj and  Hanumandas

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             Sewakram the further question- referred was :               2.    Whether  in the case of  the  assessees,               the remedy available to the Income-tax Officer               had  already become time barred under  section               34  before  that section was amended  in  1953               with retrospective effect from 1-4-1952 ? Along  with  these 1 1 appeals one more appeal  by  Onkarmal Meghraj regarding the assessment year 1943-44 also was heard by  the Tribunal and in that case also the  second  question was referred to the High Court. Before  the High Court a contention was raised on the  basis of  the provisions of the Indian Income-tax (Amendment)  Act (1 of 1959) that notices issued and the action taken in  the present cases could not be called in question on the  ground that the period prescribed in that 394 behalf  had expired.  The High Court thereupon called for  a supplementary statement of the case.  That was forwarded  by the  Tribunal annexing thereto such record as was  indicated by the High Court in its order calling for the supplementary statement.   The  High Court, thereupon,  framed  a  further question as follows :               "Whether   section   4  of   the,   Income-tax               (Amendment) Act (1 of 1959) was applicable  to               any one or more of these assessments The High Court held against the Department on this question. This  was  not argued before us and we  need  not  therefore spend any further time over it. For  the purpose of deciding whether section 34(3)  applied, the Jr High Court went into the question whether the notices in these cases were issued under clause (a) or clause (b) of section   34(1).   After  considering  all  the  facts   and circumstances relevant to the determination of the  question the  High  Court  came to the conclusion  that  the  notices issued  should be deemed to have been issued  under  section 34(1)(b).   This  was based upon the proposal  made  by  the Income-tax Officer, the sanction given by the  Commissioner, the  notice issued by the Income-tax Officer and the  return made  by the assessees, as well as the assessment  order  of the  Income-tax  Officer.  The High Court also came  to  the same  conclusion in respect of the case of Onkarmal  Meghraj for the assessment year 1943-44. It then considered the question whether the case came  under the  2nd proviso to section 34(3).  The High  Court  pointed out  that neither group could be regarded as  falling  under section  34(1)  (a)  and held that the cases  of  the  seven persons could not be treated as cases of no return and  that the  order  of  ’no assessment’ made  in  respect  of  these persons was not because of a wrong or improper return having been  submitted  by  these  assessees,  but  because  of  an erroneous  view  taken by the Income-tax  Officer  that  the income  had  to be assessed in the hands of  the  HUFS.   As regards  the second group of four persons it  observed  that they  had submitted their returns as individuals and had  IF fully and truly disclosed the income received by them, which was  liable  to  assessment.  The  Income-tax  Officer  had, however,  made the assessment on three HUFs  represented  by three  of  the four Persons and assessed the income  as  the income of the HUFS.  The result was not because of a failure or omission on the part of these persons to make a return of their respective income, but because the income was assessed in the hands of the HUFS.  Thus the escapement of assessment of income was not due to any failure or omission on the part of the assessees but because of the erroneous view taken  by the Income-tax Officer.  It thus held that the cases did not

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fall  under  section 34(1)(a) and that they could  not  fall under  the  second  proviso to section  34(3)  because  that proviso  became applicable only from the 1st day  of  April- 1952 and the assessment under section 34 being in respect of the  assessment year 1944-45, the action to be  taken  under section 34 would be barred.  The same view was taken in  the case  of  the solitary appeal of Onkarmal  Meghraj  for  the assessment year 1943-44.  Even in respect of 395 Narayandas, Meghraj and Hanumandas it observed that although they  were undoubtedly parties to the proceedings  in  which the,  findings or orders were given, and the second  proviso to  section 34(3) would not be inapplicable but it could  be applied  only  within  the period  of  limitation  that  had expired  before  1st April, 1952.  In the  result  the  High Court answered two of the questions in the affirmative.  The Commissioner  of Income-tax has, therefore, filed  these  12 appeals. It  appears  to us that the conclusion reached by  the  High Court  in  respect  of the question whether  clause  (a)  or clause (b) of section 34(1) applies is correct.  Neither the proposal   submitted  by  the,  Incometax  Officer  to   the Commissioner  for  taking action under section  34  nor  the sanction  of  the Commissioner, nor the  notices  issued  in these  cases nor the returns filed by the parties, nor  even the assessment orders of the Income-tax Officer point to the conclusion  that  action was either  contemplated  or  taken under  clause (a).  It has to be kept in mind that  all  the eleven  persons had filed their returns in their  status  as individuals.   The fact that seven of them filed as  smaller HUFs  makes no difference to this fact.  The larger  HUF  of Narayandas, Meghraj and Hanumandas was neither in  existence nor did it file a return as such.  Indeed from the year 1930 it never existed.  The assessment for 1939-40 to 1941-42  of the three HUFs was only by agreement between the Parties and the  Department and was not questioned.  The assessment  for 1942-43  was somehow not taken up on appeal.  The  direction given  by  the Tribunal on 31-7-1953 was in respect  of  the assessment  for  1943-44.  The Income-tax Officer  had  even before that date assessed the three units as HUF for 1944-45 and  passed  an order of ’No Assessment’ in respect  of  the individuals.  For that year also all of them had filed their returns  as individuals.  Clearly, therefore, there  was  no question  of  omission  or failure to make a  return  or  to disclose  fully and truly all material facts  necessary  for their  assessment and the escapement of assessment  was  not due  to any such fact but due to the action of the,  Income- tax Officer assessing non-existent HUFs and passing an order of  ’No Assessment’ in respect of individuals.  Section 34 (1)  (a) cannot, therefore, apply and only section 3  4  (1) (b) can apply. The second proviso to section 34(3) does not apply to  eight of   the  11  respondents  in  the  appeals  regarding   the assessment  year  1944-45, as they were not parties  to  the proceedings  in  which  the direction of  the  Tribunal  was given, and the same consideration applies to the  respondent Onkarmal  Meghraj  for the assessment  year  1943-44.   Only Narayandas, Meghraj and Hanumandas who had filed returns  as individuals  but who had been assessed as HUFs were  parties thereto.   The  others had no occasion to go up  in  appeal- because  the Income-tax Officer had passed an order  of  ’No assessment’  in their cases.  Regarding the :assessment  for the year 1943-44, the assessments were made in pursuance  of the directions given by the Appellate Assistant Commissioner in  the  three  appeals preferred by the  persons  who  were

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treated  as  Kartas  of the three HUFs in  whose  hands  the income  was assessed by the Income-tax Officer.  These  were Narayaridas   Pokarmal,  Meghraj  Pokarmal  and   Hanumandas Sewakram.   In  these  cases  the  settlement  between   the Department  and  the parties earlier was on the  basis  that there  was  partial partition in the HUFS.  It  has  already been mentioned that be- 396 fore the year 1939-40 the various partners of the firm  had been  assessed in their individual  capacities.   Therefore, the  appeals filed by Narayandas Pokarmal, Meghraj  Pokarmal and  Hanumandas  Sewakram  cannot  represent  the  separated members  of the family.  These three persons, however,  were parties  to  the  said proceedings.  They  had  filed  their returns as individuals and because they had been assessed as HUFS,  had carried the matter up on appeal.  In  respect  of the   other  eight  persons  who  also  filed   returns   as individuals the direction issued by the Assistant  Appellate Commissioner  in the appeals filed by  Narayandas,  Onkarmal and Hanumandas cannot be said to apply to them as there  was no  HUF and they were not members of a HUF.  The words  "any person"  in  the second proviso to section  34(3)  has  been interpreted by this Court in Income-tax Officer v. Murlidhar Bhagwan  Das(1)  as  any person  intimately  connected  like members of a HUF, partners of a firm or individuals  forming an  association of individuals because in such cases  though they  are not eo nomine parties they could be deemed  to  be represented  by the HUF, partnership or  association  before the  relevant  Income-tax Authority.  Such is not  the  case with  regard to these individuals because no HUF was  before the concerned Income-tax Authority-indeed there was no  HUF- and  therefore they would not be bound by those orders.   In the case of individuals who were actually before the  Appel- late  Assistant  Commissioner and the  Tribunal  the  orders would  bind  those  three  individuals.   In  their   cases, therefore, the second proviso can be rightly applied. We  have now held that the notices in these cases should  be deemed  to have been issued under section 34(1) (b) and  the orders of the Tribunal and Assistant Appellate  Commissioner would apply to the three persons who were eo nomine  parties before  them but not others.  The next question  is  whether the  bar of limitation applies in any of the cases.  A  good deal  of argument was advanced before us as to  whether  the second  proviso to section 34(3) could be availed of at  any time.   It appears to us that it could be so availed  of  in respect  of  persons in whose cases reassessments  are  made under  section 27 or in pursuance of an order under  section 31,  33A,  33B,  66 or 66A,  that  is  Narayandas  Pokarmal. Meghraj  Pokarmal  and  Hanumandas Sewakram.   There  is  no difficulty  in  holding that the second proviso  applies  to them.  They had filed their returns as individuals and  been assessed  as HUFS.  It is open to persons in that  situation to contend, as indeed they did, that they should be assessed as  individuals  and not as HUFS.  And  when  the  Appellate Assistant  Commissioner and the Tribunal make an order  that they should not be assessed as HUFs but as individuals  they are  only  giving effect to the contention of  the  parties. Their  cases  come  directly  under  the  principle  of  the decision  in  Income-tax Officer v.  Murlidhar  Bhagwan  Das (supra).   Even  if they are not assessees, they  are  inti- mately  connected with the assessee, that is the  HUF.   The earlier  order  of ’No Assessment’ made  by  the  Income-tax Officer in their case does not affect this situation. But  as far as the other eight persons are  concerned,  they did  not  have anything further to do after  the  Income-tax

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Officer in spite of their filing returns as individuals made an order of ’No Assessment’.  They (1)  [1964] .52 I.T.R. 335. 397 were not before the Appellate Assistant Commissioner or  the Tribunal.  They were not assessees nor were they  intimately connected with the assessee that is the HUF as there was  no HUF.  Therefore, the second proviso to section 34(3) is  not applicable  in  their cases.  The right  of  the  Income-tax Officer  to assess these persons can be upheld only  if  the notice under the substantive part of section 34 can be  said to be a valid notice.  The assessment year being 1944-45 the notice under section 34 issued in April 1954 was beyond  the period of 4 years under s. 34(1) (b)    which  we have  held applies to them.  For the reasons just set forth the   second proviso to s. 34(3) does not apply to them. That  raises  the  question whether that  proviso  could  be applied  without reference to any period of limitation.   It is a well settled principle that no action can be  commenced where  the  period  within which it  can  be  commenced  has expired.   It is unnecessary to cite authorities in  support of  this  position.  Does the fact that the  second  proviso says  that  there  is  no  period  of  limitation  makes   a difference  ?  The first thing to be noticed  is  that  that provision was given retrospective effect only from  1-4-1952 though the Income Tax (Amendment-) Act came into effect from 24-5-1953.   Where  it is intended  that  the  retrospective effect should be without any limit it is usual and proper to provide  that the amendment would have effect and  would  be deemed  always to have had effect as if it had been part  of the  Act from its inception.  That that was not  done  shows that  the intention was only to give  limited  retrospective effect, that is to say, there would be no bar of  limitation if it had not expired before 1-4-1952. We will now refer to some of the decisions which were relied upon. In S. C. Prashar v. Vasantsen Dwarkadas(1) the effects of  the amendment made to section 34 were considered by  the Bombay High Court.  A Bench of that High Court consisting of Chagla,  C. J. and Tendolkar, J. held that where the  period mentioned in the substantive part of section 34 had  expired before the amendment in 1953 i.e., before 1st’ April 1952 no action can be taken under that section.  The court also took the  view that the second proviso to section 34(3)  offended article  14  of the Constitution in so far  as  it  affected third  parties.  That question has now been set at  rest  by the  decision  of  this  Court  in  Income-tax  Officer   v. Murlidhar  Bhagwan Das (supra) as already noticed.  In  this Court out of the 5 Judges who heard the appeal in Prashar v. ’Vasantsen  Dwarkadas(2)  two  of the Judges,  Das,  J.  and Kapur, J. held that section 31 of the Income-tax (Amendment) Act  1953  did not operate as regards assessment  years  for which assessment or reassessment was barred before April  1, 1952, in accordance with section 34 before it was amended in 1948.   Hidayatullah,  J. and Raghubar Rayal,  J.  took  the contrary  view.   Sarkar,  J. expressed no  opinion  on  the point.   In  J.  P. Jani, I.T.O.  v.  Induprasad  Devshankar Bhatt(3) this Court held that the Income-tax Officer  cannot issue a notice under section 148 of the Income-tax Act, 1961 in  order to reopen the assessment of an assessee in a  case where  the right to reopen the assessment was  barred  under the 1922 Act at, the date when the new Act came into  force. It was held (1) [1956] 29 I.T.R. 857. (2) [1963] 49 I. T. R. (S.C.) 1. (3)  [1969] 72 I.T.R. 595.

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398 that  S. 297(2) (d) (ii) of 1961 Act was applicable only  to those  cases  where the right of the Income-tax  officer  to reopen an assessment was not barred under the repealed Act., This decision is broadly in line with the opinion of Das and Kapur,  JJ. in Prashar’s case.  The decision of  this  Court relied upon by the appellant, in Income-tax Officer v. T. S. Devistha  Nadar,(1)  which was a case under  section  35(5), which  was  introduced into the Income-tax Act by  the  1953 amendment  at the same time as the amendment to section  34, does not really affect this position.  This Court observed :               "As  we  have already  said,  sub-section  (5)               becomes  operative as soon as it is  found  on               the assessment or reassessment of the firm  or               on  any reduction or enhancement made  in  the               income  of  the  firm that the  share  of  the               partners in the profit or loss of the firm had               not  been  included in the assessment  of  the               partner  or if included was not correct.   The               completion of the assessment of the partner as               an  individual need not happen after April  1,               1952.  The completed assessment of the partner               is  the  subject matter of  rectification  and               this  may  have preceded  the  above               -mentioned  date.   Such completion  does  not               control the operation of the sub-section.   In               the result we find ourselves unable to  concur               in  the  decision or the reasoning  in  Atmala               Nagaraj’s case."(2) The   position  can,  therefore,  be  said  to   have   been satisfactorily established that the effect of the  amendment of  section  34  in, 1953 is not to  enable  the  Income-tax Officer  to take action under that section where the  period mentioned  therein had expired before 1-4-1952.  That  would apply  in  these  cases to  persons  other  than  Narayandas Pokarmal,  Meghraj Pokarmal and Hanumandas  Sewakram.   In their cases the second proviso to section 34(3) would apply, whether it is the old proviso or, the proviso introduced  in 1953. In the result Civil Appeals Nos. 2264 of 1969, 22-68 of 1969 and  2272  of  1969 are allowed with  costs.   The  other  9 appeals are dismissed with costs. S.C.            Appeals partly allowed. (1) [1968] 68 I.T.R. 252. (2) [1962] 46 I.T.R. 609(sc.) 399