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PETITIONER: COMMISSIONER OF INCOME-TAX

       Vs.

RESPONDENT: SARDAR LAKHMIR SINGH

DATE OF JUDGMENT: 12/12/1962

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. DAS, S.K. SARKAR, A.K. HIDAYATULLAH, M. DAYAL, RAGHUBAR

CITATION:  1963 AIR 1394            1964 SCR  (1) 148  CITATOR INFO :  RF         1963 SC1356  (73)  F          1963 SC1399  (3,8)  R          1965 SC1267  (9)

ACT: Income-tax-Limitation-Assessment  made after  four  years-If barred-Provision  saving  assessment  in  respect  of   some persons-If discriminatory-Indian Income-tax Act, 1922 (11 of 1922),  s.  31,  34(3)-Indian  Income-tax  (Amendment)  Act, 1953  (25 of 1953)) ss. 18, 31-Constitution of  India,  Art. 14.

HEADNOTE: The  assessee and his father filed separate returns for  the year 1946-47 and the father also filed a return as Karta  of the Hindu undivided family in which the income was  declared as  nil  on the ground that the Hindu undivided  family  had ceased to exist.  On March 15, 1951, the Income-tax  Officer amalgamated  the incomes of the assessee and his father  and assessed  them on the total income as the income of a  Hindu undivided  family but he did not make any assessment of  the assessee  as  an individual.  On appeal by  the  father  the Appellate  Assistant Commissioner, on March 20,  1953,  held that  there  was no Hindu undivided family, set  aside  that assessment  and directed a reassessment of the assessee  and his   father  as  individuals.   Thereupon  the   Income-tax Officer,  by  order dated November 27,  1953,  assessed  the assessee as an individual. 149 The  assessce contended that the assessment not having  been made within four years of the year 1946-47 i.e. by March 31, 1951,  was barred by s. 34(3) of the Income-tax  Act,  1922, The  Appellate  Tribunal held that the  assessment  was  not barred, but, at the instance of the assessee, it referred to the  High  Court  the question whether  the  assessment  was validly  made.   The High Court answered  the  reference  in favour  of the assessee.  The appellant contended  that  the assessment  was  within time as it was saved by  the  second proviso to s. 34(3) as amended by the Amending Act, 1953 and

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that  the assessment was validated by s. 31 of the  Amending Act, 1953. Held  (per  Das,  Kapur and Sarkar,  JJ.,  Hidayatullah  and Dayal, JJ., dissenting) that the assessment not having  been made within the time prescribed by s. 34(3), was barred. S.  C. Prashar, Income-tax Officer v.  Vasantsen  Dwarkadas, [1964] Vol. 1 S. C. R. 29, relied on. Per Das and Kapur, JJ.-The second proviso to s. 34(3)  which came  into force on April 1, 1952, did not revive the  power to  assess which had become barred.  Further, the  appellant could  not rely upon s. 31 of the Amending Act of  1953,  as this  question was not covered by the question  referred  to the High Court. Per Sarkar, J.-The second proviso to s. 34 (3) as amended in 1953, in so far as it affected persons other than  assessees was  void  as violating Art. 14 of  the  Constitution.   The proviso  sought to save assessments in respect of  assessees and those against whom assessments were made in  consequence of orders made under s. 31 in the assessment cases of  those assessees   but  not  those  of  other  tax  evaders.    The classification made was without any intelligible differentia having a rational connection with the object of the statute. Per  Hidayatullah and Dayal, JJ.-The assessments were  valid and were saved by the second proviso to s. 34(3) as  amended in 1953 and by s. 31 of the Amending Act of’1953.  The Court was  bound  to take notice of s. 31 of the Amending  Act  of 1953  even  though  it was not mentioned  in  the  order  of reference  and in the judgment of the High Court Section  31 of  the Amending Act was clearly applicable to the  case  as admittedly  the  proceedings commenced  after  September  8, 1948.  Further the second proviso to s. 34(3) as amended  in 1953  was not discriminatory and did not offend Art.  14  of the Constitution.  A law relating to tax evasion cannot  lay down a 150 uniform  system applicable to all kinds of defaulters.   The class which falls within this proviso for which there is  no limit of time within which the assessment is to be made  and the  class which falls ’outside the proviso for which  there is a limit of 4 years or 8 years, arc two distinct  classes. The    different    treatment   arises    under    different circumstances.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 214 &  215 of 1958. Appeals from the judgment and decree dated May 7,1957 of the Patna High Court in M. J. C. No. 263 of 1956. K.-N. Rajagopal Sastri and P. D Menon, for the Appellants. S. P. Varma, for the Respondents. 1962.  December 12.  The following judgments were delivered. S.  K.  Das,  J., J. L. Kapur, J., and  A.  K.  Sarkar,  J., delivered   separate   judgments.   The   judgment   of   M. Hidayatullah  and-Raghubar  Dayal,  JJ.,  was  delivered  by Hidayatullah, J. S.K.  DAS., II.-The facts out of which these two a  peals have  arisen have been stated in the judgment of my  learned brother  Kapur, J., and as I am in full agreement  with  the conclusion reached by him, I need not re-state the facts. The relevant assessment years were 1946-1947 and  1947-1948. The assessment orders were made on November 27, 1953.  It is obvious  that the assessments were not made within the  time prescribed  by  sub-s. (3) of s. 34, the period  being  four

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years  in  this  case.  The Tribunal relied  on  the  second proviso  to sub-s. (3) of s. 34 as amended by  the  Amending Act  of  1953 which came into force on April 1,  1952.   For reasons  which  I have given in S. C.  Prashar,  Income  tax Officer  v. Vasantsen Dwarkadas (1), in which  judgment  has been delivered to-day, the second proviso to (1)  [1964] Vol.  1 S.C.R. 29. 151 sub-s.  (3) of s. 34 does not revive a remedy  which  became barred  before April 1, 1952, when the amended proviso  came into force. Next,  the appellant relied on s. 31 of the Amending Act  of 1953.  1  agree with my learned brother Kapur,J.,  that  the question  of law which was referred to the High  Court  does not  take  in the point now sought to be  urged  before  us. Secondly, for reasons given by me in S. C. Prashar,  Income- tax  Officer v. Vasantsen Dwarkadas (1) I do not think  that s. 31 saves the assessment. I  would  accordingly dismiss the appeals  with  costs;  one hearing fee. KAPUR,  J.-These are two appeals pursuant to  a  certificate granted by the High Court of Patna against the judgment  and order of that Court in which the following question referred by  the  Incometax Appellate Tribunal was  answered  in  the negative and against the appellant :               "Whether  having  regard to the  return  dated               March 7, 1951, by Sardar Lakhmir Singh in  his               individual  capacity and to the provisions  of               section 34 (3), the assessment made on him  on               November 27, 1953, is validly made ?" The relevant years of assessment are 1946-47 and 1947-48 and the  two  appeals relate to these years  respectively.   The respondent  is  a  son  of  S.  Nechal  Singh.   Up  to  the assessment  year  1943-44  the father  and  son  were  being assessed  as a Hindu undivided family.  For  the  assessment year 1944-45 a claim was made under s. 25A of the Income-tax Act,  hereinafter  referred  to  as the  ’Act’  and  it  was contended that the income of S. Nechal Singh and S.  Lakhmir Singh  should  be separately assessed  as  their  individual incomes.   This  claim was not accepted and the  income  was assessed as that of a Hindu undivided (1)[1964] Vol.  1 S.C.R. 29. 152 family  with  S.  Nechal  Singh  as  the  Karta.   For   the assessment  year  1945-46, S. Nechal Singh  and  S.  Lakhmir Singh  filed two separate returns and made a claim under  s. 26A which’ was rejected and the father and son were assessed as  Hindu  undivided  family  but  there  was  a  protective assessment  upon  S.  Lakhmir Singh as  an  individual.   An appeal was taken to the Income-tax Appellate Tribunal  which held that the income of S. Nechal Singh and S. Lakhmir Singh was  not  the income of a Hindu undivided family  but  their individual  incomes.  The Appellate Tribunal set  aside  the assessment  of  the Hindu undivided family.   In  its  order dated October 15, 1952, the Appellate Tribunal said :               "The  assessment, is therefore, set aside  and               the  Income-tax Officer is directed to make  a               fresh assessment according to law as from  the               return  stage upon the correct persons on  the               sources  of income belonging to them as  found               above". For  the assessment year 1946-47, three returns  were  filed (1)  by  respondent S. Lakhmir Singh on March 15,  1651,  in regard  to his separate income, (2) by S. Nechal Singh  also in his individual capacity and the third under protest by S.

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Nechal  Singh  as the Karta of the Hindu  undivided  family. The  latter  return was dated June 20, 1950, and  the  total income  in  the return was declared as nil.   On  March  15, 1951, the Income-tax Officer assessed the total income of S. Nechal Singh and S. Lakhmir Singh as the income of the Hindu undivided  family.  On March 20, 1953, an appeal  was  taken against  the  assessment  for  the  year  1946-47  and   the Appellate Assistant Commissioner set aside the two orders of the Income-tax Officer in view of the order of the Incometax Appellate  Tribunal dated October 15, 1952,  above  referred to.   On  November  27, 1953, the  Income-tax  Officer  made assessment   upon  respondent  S.  Lakhmir  Singh   in   his individual capacity.  An 153 appeal  was  taken  against that  assessment  order  to  the Appellate  Assistant Commissioner and the contention  raised was  that  the  order of assessment  was  barred  under  the provisions  of  the  unamended s.34(3)  of  the  Act.   This contention was rejected and an appeal taken to the Appellate Tribunal  was dismissed on September 6, 1955.  The  Tribunal held that under the amended proviso to s. 34(3) the  Income- tax  Officer was entitled to assess the income of  the  res- pondent  even  though he was not the  appellant  before  the Appellate Assistant Commissioner and there is no  limitation for  such an assessment.  At the instance of the  respondent the question quoted above was stated to the High Court. The  High Court held that the Amending Act of 1953 does  not apply  to  the facts of the present case and  the  order  of assessment  of  the Income-tax Officer  dated  November  27, 1953,  was barred under the provisions of the  unamended  s. 34(3)  of the Act; that was because on April 1,  1952,  when the  Amending Act of 1953 came into force the power  of  the Income-tax Officer to assess the tax for 1946-47 had already become  barred  and  a right had accrued in  favour  of  the respondent before April 1, 1952. In  regard  to the assessment of 1947-48 also for  the  same reasons the assessment was held to be illegal.  Two  appeals have been brought against those orders in regard to the  two assessment orders and the appeals have been consolidated. The argument on behalf of the appellant is that the  Income- tax  Officer made the assessment on November 27 ,  1953,  in pursuance   of   the  order  of  the   Appellate   Assistant Commissioner  dated March 20, 1953, and as at the time  when the  Incometax Officer completed the assessment the  proviso to  s. 34(3) had come into operation the Income-tax  officer could, in spite of the lapse of the period, 154 reassess  the respondent and the reassessment was  therefore valid.-  The  argument raised was really the  same  as  that raised  in  S. 0. Prashar, Income-tax Officer  v.  Vasantsen Durkadas  (1),  judgment in which case  has  been  delivered today. In  the present case the period applicable was  four  years. In regard to the assessments for the years 1946-47 and 1947- 48 the period of four years ended before April 1, 1952.  For reasons given in S.C. Prashar’s (1) case the assessment will be barred and in our opinion the High Court rightly held  it so. Another  argument  sought  to be raised in  support  of  the assessment  order of the Income-tax Officer was based on  s. 31  of the Amending Act 1953.  It was submitted  that  under the  first part of that section the  assessment  proceedings have been validated. The relevant portion of s. 31 is as follows:--               "For  the removal of doubts it is hereby  dec-

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             lared that the provisions of sub-sections (1),               (2) and (3) of section 34 of the principal Act               (the Indian Income-tax Act, 1922) shall  apply               and shall be deemed always to have applied  to               any  assessment or reassessment for  any  year               ending before the 1st day of April 1948 in any               case  where  proceedings in  respect  of  such               assessment  or  reassessment  were   commenced               under the said sub-sections after the 8th  day               of September 1948." It  was argued that the assessments are for the year  ending before  April  1, 1948 and the  assessments  were  commenced under  sub-ss. 1, 2 and 3 of s. 34 after September  8,  1948 and  therefore  sub-ss. 1, 2 and 3 must be  deemed  to  have applied to the two assessments.  In the first place no  such question was raised (1)  [1964] Vol.  1 S.C.R. 29. 155 before  the High Court.  It had only to answer the  question which  was referred to it as it was acting in  its  advisory jurisdiction;  and it could not answer any  other  question. But  it was, submitted that the form of the question  itself is  such that it takes in the applicability of s. 31 of  the Amending  Act of 1953.  As we have said above this  question was  not  referred  to either in the High Court  or  in  the Grounds  of Appeal when the certificate was applied for  nor in  the  appellant’s  Statement of Case.  The  form  of  the question also does not take in the applicability of s. 31 of the  Amending Act 1953.  The question refers firstly to  the return filed by the respondent S. Lakhmir Singh dated  March 7, 1951, and then to the provisions of s. 34 (3).  It has no reference to the validity of the proceedings because of  the commencement  of  the proceedings after September  8,  1948. The commencement of the proceedings in regard to  assessment year  1946-47  has not been shown to be after  September  8, 1948.  No doubt the return was filed on March 15, 1951,  but there  is nothing to show what the date of the  commencement of the proceedings was.  If the appellant wanted to rely  on s.  31 it was his duty to place all the effectual  materials before  the  Appellate   Tribunal on the basis  of  which  a properly framed question could be referred and then answered by the High Court.  On the material as it stands no question of  the  application of s. 31 of the Amending  Act  of  1953 arises  nor is there a finding that the commencement of  the proceedings  was  on March 7, 1951, when  according  to  the question referred the return was filed.  In this view of the matter  the  applicability of s. 31 of the Amending  Act  of 1953 is not available to the appellant. The extent of jurisdiction of the High Court under s. 66  of the  Act has been decided by this Court in The New  Jehangir Vakil Mills Ltd. v. CommiSsioner of Income-tax.(1) (1)  [1960] 1 S.C.R. 249. 156 For  reasons given above the appeals fail and are  dismissed with costs.  One hearing fee.      SARKAR,  J.-These  appeals concern the  two  assessment years,  1946-47  and 1947-48.  The question is  whether  the assessment orders in respect of these years which were  both made  on  November  27, 1953, are  valid  under  the  second proviso  to sub-s. (3) of s. 34 of the Income-tax Act,  1922 as  that proviso stood after it was amended by s. 18 of  the Income-tax (Amendment) Act, 1953. The  assessee  is  Lakhmir Singh, the  respondent  in  these appeals.   Up  to the year 1943-44, the  assessee  formed  a Hindu undivided family with his father Nechal Singh and  his

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brother  Dhanbir Singh.  For the year 1944-45, a  claim  was made under s. 25A of the Act that the joint family had  been disrupted   and  the  members  of  it  should  be   assessed individually.   This claim was rejected.  For the next  year 1945-46,  the claim under’ s. 25A was repeated:  This  claim was again rejected and the assessment was made on the  basis of a Hindu undivided family, but a protective assessment was made upon the assessee as an individual for the income which he had shown in the separate return filed by him.  This time an appeal was filed against the rejection of the claim under s.  25A.   While  the  aforesaid  appeal  was  pending,  the assessee and his father filed separate returns for the  year 1946-47  and the father also filed a return as Karta of  the Hindu  undivided family in which the income was declared  as nil  on the ground that the Hindu undivided family  did  not exist  since  1944-45.  On March 15,  1951,  the  Income-tax Officer  amalgamated  the incomes of the  assessee  and  his father; assessable in the year 1946-47, and assessed them on the total income as the income of a Hindu undivided  family. He however did not make any protective assessment this  time as he had done for the year 1945-46.  The assessee’s  father as 157 the  Karta of the Hindu undivided family appealed  from  the order of March 15, 1951. On  October  15,  1952, the  Income-tax  Appellate  Tribunal allowed the assessee’s appeal against assessment as a  Hindu undivided  family for the year 1945-46 and observed :  "’We, therefore,  conclude  that  notwithstanding  the   erroneous description given by the appellant to himself in his returns before 1943-44 as Hindu Undivided Family, in which status he was  accordingly  assessed in the past on  the  income  from property’ and business etc., which belonged either to him or to  him  and his partner and elder son  Lakhmir  Singh,  the assessment  made  for the year 1945-46, in the status  of  a Hindu Undivided Family cannot be sustained.  The  assessment is,  therefore,  set  aside and the  Income-Tax  Officer  is directed to make a fresh assessment according to law as from the return stage upon the correct persons and the sources of income  belonging to them as found above." In view  of  this order  of  the  Tribunal, the  assessee’s  appeal  from  the assessment  order in respect of 1946-47 was also allowed  by the  Appellate Assistant Commissioner on March 20, 1953  and the  assessment order of March 15, 1951 was set aside.   The Appellate  Assistant Commissioner’s order said, "’Heard  the appellant.   It having been decided that the  assessment  on the  status of a H. U. F. is not sustainable the  assessment is SET ASIDE for a re-assessment of sources involved on  the correct persons and in the correct status according to Law." The   position   with  regard  to  the  year   1947-48   was substantially  the  same.  The assessee and his  father  had been  assessed on their total income as members of  a  Hindu undivided family by an order of the Income-tax Officer dated March  24, 1952.  The assessee’s father as the Karta of  the undivided family appealed from this order.  The Appellate 158 Assistant  Commissioner  allowed this appeal  on  March  21, 1953, and set aside the assessment order of March 24,  1952. He  observed, "Heard Appellant.  For the same reason  as  in 1946-47 the assessment is set aside for a re-assessment." It appears that for the year 1947-48 also the assessee and  his father had filed separate returns and the father filed  also a return as a Hindu undivided family declaring the income in the  last mentioned return as nil.  In this year also  there does  not  appear  to have been  any  protective  assessment

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against the assessee individually. Thereafter  the  Income-tax Officer proceeded  to  make  the impugned  orders  of  assessment of November  27,  1953,  in respect  of  the years 1945-47 and 1947-48  on  the  returns which  had  been  filed by the assessee  in  his  individual capacity.   The  assessee  appealed  against  the  order  of November 27, 1953, but the appeal was dismissed.  Thereafter the  assessee obtained an order from the Tribunal  referring the  ,following question in respect of the Tribunal’s  order dismissing  his appeal against the assessment for  the  year 19-16-47 for the decision of the High Court at Patna.               "Whether having regard to the return dated 7th               March,  1951, by Sardar Lakhmir Singh  in  his               individual  capacity and to the provisions  of               s.  34(3)  the assessment made on him  on  the               27th November, 1953 is validly made". A  similar  question was referred to the  High  Court  under another  order of the Tribunal in respect of the year  1947- 48.   The  High  Court answered the  questions  against  the revenue  authorities who have, therefore, come up in  appeal against  the decision of the High Court.  That is why  there are two appeals. The assessee contends that the orders of assessment were not within time prescribed in s. 34(3) of 159 the  Act.   Under  the substantive part of  sub-s.  (3)  the orders of assessment should have been made within four years of  the years 1946-47 and 1947-48, that is, by March  31  of 1951  and 1952 respectively but they were made  on  November 27,  1953.   It is, therefore, not in dispute that  if  they were not protected by the second proviso to sub-s. (3) of s. 34  as amended by the amending Act, 1953 earlier  mentioned, then the orders were not valid.  The question is, were  they so protected ? The second proviso is in these terms:               "Provided  further that nothing  contained  in               this  section limiting the time  within  which               any   action  may  be  taken  or  any   order,               assessment or re-assessment may be made, shall               apply to a re-assessment made under section 27               or  to an assessment or re-assessment made  on               the  assessee or any person in consequence  of               or to give effect to any finding or  direction               contained  in  an  order  under  section   31,               section 33, section 33A, section 33B,  section               66 or section 66A." It is contended that under this proviso, the orders would be valid notwithstanding the provision in the substantive  part of sub-s. (3).  But it strikes in that this proviso  offends Art.  14  of  the Constitution  and  is,  therefore,  itself invalid.   If  that  is so, of course, no  question  of  its protecting the assessment orders made in this case arises. Now,  the proviso purports to make valid an assessment  made beyond the period provided for it in the substantive part of sub-s. (3) where the assessment is made in consequence of an order  under section 31 or certain other sections.   Section 31  deals  with  an order in appeal  made  by  an  Appellate Assistant Commissioner.  Now, in this case the orders of the Appellate Assistant Commissioner were passed 160 under  s. 31 on March 20 and 21, 1953.  These orders I  have earlier  set  out.  It was in consequence of them  that  the disputed orders of assessment came to be passed.  We are not concerned with the other sections mentioned in the proviso. Now, the proviso in substance says that notwithstanding that an order of assessment is bad as having been made beyond the

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time  prescribed in the substantive part of sub-s.  (3)  for making it would not be bad if ",made on the assessee or  any person in consequence of......... an order under section 31" The  proviso,  therefore, puts in a class the  assessee  and other persons against whom an order of assessment is made in consequence  of  an  order under s.  31.   It  discriminates against  these  persons inasmuch as an order  of  assessment against  them  can be made at any time but in  the  case  of other evaders of tax, an order must be made within the  time prescribed  in  the  substantive part of  sub-s.  (3).   The assessee  in the proviso is the assessee in the appeal  from or  in other proceedings in whose assessment an order  under s.  31  or the other sections mentioned in the  proviso,  is made.   It may be said though I do not pronounce finally  on the  question  now  that such an assessee may be  put  in  a separate class, for in his case, in his presence it has been found judicially that he has evaded tax.  To that extent, he may  be  different  from  other  evaders  of  tax  and   the differentia  that  distinguishes  him may  have  a  rational relation  to  the object of the Act, namely,  prevention  of evasion  of tax and collection of tax that was due  but  had not been paid. But  the proviso puts in a class not only the  assessee  but other  persons,  namely,  those against  whom  an  order  of assessment comes to be made in consequence of an order under s.  31 made in the assessment case of another  person,  that is,  the assessee mentioned in the proviso.   These  persons obviously 161 are   persons   against   whom   the   Appellate   Assistant Commissioner  making  the  order under s. 31  in  an  appeal arising  out  of  the assessment  case  of  another  person, entertains  a  view that they have evaded  payment  of  tax. Such another person was not a party to any proceeding  under s.  31;  he  had no opportunity to  show  to  the  Appellate Commissioner that the view that he had entertained about him was unwarranted. The  question then arises, whether such other person can  be put in a class as contrasted with other evaders of tax?   It is not suggested and cannot be suggested, that there are  no other evaders of tax except those who have been found to  be such in proceedings under s. 31 and the other sections  men- tioned  in  the  second proviso.   I  find  no  intelligible differentia  between a person who has been found in  as.  31 proceeding  to  have evaded tax and other  evaders  of  tax, which  will have any rational relation to the object of  the second  proviso.  It is true that there may have  been  some kind  of evidence in the proceedings under s. 31  which  may have satisfied the Appellate Commissioner that a person  not before him had evaded tax.  But then it is possible for  the revenue authorities to be satisfied on equally good evidence otherwise than in the course of proceedings mentioned in the second  proviso,  that a person has evaded tax.   I  see  no distinction  between such a person and the person  mentioned in the proviso.  But such a person has the advantage of  the bar  of time against an assessment order concerning  him  as provided  in  the  substantive part  of  sub-s.  (3).   This advantage  is denied to the persons mentioned in the  second proviso.   It  seems to me that the second proviso  makes  a hostile  discrimination against persons mentioned in it  and the  classification made by it is without  any  intelligible differentia having a rational connection with the object  of the statute.  I think, therefore, that the second proviso to sub-s. (3) of 160

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s. 34, as amended by the amending Act of 1953, in so far  as it affects persons other than assessees is void as violating Art.  14  of  the  Constitution.   It  cannot  validate  the assessment  orders in this case.  As I have said before,  it is not necessary in this case to say that the proviso is bad as  making  a hostile discrimination  against  the  assessee mentioned in it and I do not do so.  The respondent  Lakhmir Singh  was  not  the assessee in the s.  31  proceedings  in consequence  of which the assessment order against  him  was made.   The assessee was his father as the Karta of  a  non- existent  family.   The  proviso  is  invalid  against   the respondent Lakhmir Singh.             I would, therefore, dismiss the appeals. For  the judgment of Hidayatullah and Raghubar  Dayal,  JJ., see S.C. Prashar, Income-tax Officer v. Vasantsen Dwarkadas, ante p. 29. By COURT : In /accordance with the opinion of the  majority, the appeals are dismissed with costs, one hearing fee.                                        Appeals dismissed. 163