08 May 1959
Supreme Court
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THE COMMISSIONER OF INCOME-TAX, BOMBAY V. Vs RANCHHODDAS KARSONDAS, BOMBAY

Case number: Appeal (civil) 281 of 1955


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PETITIONER: THE COMMISSIONER OF INCOME-TAX, BOMBAY V.

       Vs.

RESPONDENT: RANCHHODDAS KARSONDAS, BOMBAY

DATE OF JUDGMENT: 08/05/1959

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.

CITATION:  1959 AIR 1154            1960 SCR  (1) 114

ACT: Income-tax-Return  showing  income  below  minimum  taxable- Whether a good   return-Income-tax  Officer  ignoring   such return and issuing  notice  to  assessee  to  file  return-- Assessment made within one year of notice  but  beyond  four years of the end of  the assessment year--Validity of-Indian Income-tax Act, 1922 (XI of 1922), SS. 22 and 34.

HEADNOTE: A  public notice under S. 22(1) of the Income-tax Act,  1922 was  published on May 1, 1045, requiring every person  whose total  income  exceeded  the maximum amount  which  was  not chargeable to income-tax to file returns for the  assessment year 1945-46.  On January 5, 1950, the assessee submitted  a voluntary  return  showing an income of Rs.  1,935  for  the assessment  year 1945-46 and added a footnote to the  return that his wife had sold her old ornaments and deposited a sum of  Rs.  59,026 with the Assar Syndicate in which he  was  a partner.   The Income-tax Officer, who had discovered  these credits while examining the accounts of the Assar Syndicate, ignored  the  voluntary return, and, on February  27,  1950, issued  a notice under s. 34(1) of the Act calling upon  the assessee  to  submit  his return.  On March  14,  1950,  the assessee  submitted  an identical  return.   The  Income-tax Officer  made  the  assessment on  February  26,  1951,  and included  the sum of Rs. 59,026 in the total income  of  the assessee.   The assessee contended that the  assessment  was invalid  as it was completed more than four years after  the end of the assessment year in violation Of s. 34(1)(b).  The appellant contended that the voluntary return was no  return as it did not disclose any taxable income and the assessment was  valid under the proviso to s. 34(3) Of the Act,  having been  made  within one year of the notice  issued  under  s. 34(1). Held, that the assessment was invalid.  The voluntary return filed by the assessee, even though it did riot disclose  any taxable income, was a good return and could not be  ignored. As such no question arose under s. 34(1) of income  escaping assessment  and the Income-tax Officer was not justified  in issuing the notice under S. 34(1).  The proviso to S.  34(3) was  applicable only when there was a Proper  notice  issued

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under S. 34(1) and the appellant could not take advantage of the  time  allowed  by this  proviso.   The  assessment  was clearly made beyond four years of the end of the  assessment year 1945-46 and was time barred. Harakchand  Makanji  & Co. v.  Commissioner  of  Income-tax, (1948) 16 I.T.R. 119 All India Groundnut Syndicate Ltd. v. 115 Commissioner  of Income-tax, (1953) 25 I.T.R. go and  P.  S. Rama  Iyer v. Commissioner of Income-tax, (1957)  33  I.T.R. 458, approved. Commissioner  of  Agricultural  Income-tax  v.  Sultan   Ali Gharami   (1951)  20  I.T.R.  432;  B.  K.  Das  &  Co.   v. Commissioner  of  Income-tax,  (1956)  30  I.T.R.  439   and Commissioner  of Income-tax v. Govindlal Dutta (1957)  33  1 T.R. 630, disapproved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 281 of 1955. Appeal from the judgment and order dated March 18, 1954,  of the  Bombay  High Court in Income-tax Reference  No.  35  of 1953. K.   N. Rajagopal Sastri and D. Gupta, for the appellant. R.   J. Kolah and Ram Ditta Mal, for the respondent. 1959.  May 8. The Judgment of the Court was delivered by HIDAYATULLAH  J.-This  appeal on a  certificate  of  fitness granted  by the High Court of Judicature at Bombay has  been filed  by  the Commissioner of  Income-tax,  Bombay  against Ranchhoddas Karsondas of Bombay (hereinafter referred to, as the assessee) under s.   66A of the Indian Income-tax Act. The facts leading tip to this appeal are as follows For  the assessment  year 1945-46, a public notice under s. 22(1)  of the Income-tax Act (hereinafter called the Act) was  issued, requiring  every  person  whose  total  income  during   the previous  year  exceeded the maximum amount  which  was  not chargeable to income-tax to furnish, within such period  not being  less  than sixty days as might be  specified  in  the notice,  a return of his income in the prescribed  form  and verified   in  the  prescribed  manner.   This  notice   was published  on  or about May 1, 1945.  The assessee  did  not make a return of his income.  The Income-tax Officer,  while examining the books of account of a partnership called the " Assar Syndicate " of which the assessee was a partner, found that  in  the account year corresponding to  the  assessment year 1945-46, there were six cash credits aggregating to Rs. 59,026 in the name of the assessee’s wife.  Before, however, the Income-tax 116 Officer  could take any action, the assessee submitted  a  " voluntary " return on January 5, 1950 of his income for  the accounting year 1944-45 (assessment year 1945-46) showing  a total  net income of Rs. 1,935.  He added a footnote to  the return to the following effect: "  My wife has sold her old ornaments and deposited the  sum of Rs. 59,026 in the firm of Assar Syndicate in which I am a partner." The  Income-tax Officer did not act on this return,  but  on February 27, 1950 he issued a notice purporting to be  under s.  34  of the Act calling upon the assessee to  submit  his return.   This  notice was served on the assessee  on  March 3,1950,  and  in answer thereto, the  assessee  submitted  a similar return on March 14, 1950 showing the same income and adding  the  same  footnote.  The  Income-tax  Officer  then issued and served upon the assessee notices under ss.  22(4)

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and  23(2)  of the Act asking him to produce  his  books  of account  and  to tender any evidence he cared to  lead.   It appears  from  the record that these notices  were  complied with,  but  on  February 26,  1951  the  Income-tax  Officer included  the sum of Rs. 59,026 in the total income  of  the assessee  and  assessed him on it for  the  assessment  year 1945-46. The  assessee appealed, in turn, to the Appellate  Assistant Commissioner  and  the Income-tax Appellate  Tribunal.   His contentions were three, viz., that the amount of Rs.  59,026 could  not and should not have been included in his  income, that  the  amended  S. 34 of the Act  had  no  retrospective effect,  and that the assessment completed on  February  26, 1951  was invalid, inasmuch as it was completed  four  years after.  the end of the relevant assessment year.   Both  the Appellate  Assistant  Commissioner as well as  the  Tribunal rejected his contentions, but the Tribunal on being moved by him, raised and referred two questions of law under s. 66(1) of the Act to the High Court of Judicature, Bombay, for  its decision.  These questions were: " (1) Whether the notice issued under Section 34 of the  Act by the Income-tax Officer on 27-2-1950, 117 after the assessee had filed a voluntary return was valid in law? (2)  Whether the assessment made on 26-2-1951 is valid in law? This reference  was  heard by the High Court  on  March  18, 1954,  and by a judgment delivered on the same day,  Chagla, C.J., and Tendolkar, J., answered’ both the questions in the negative.  Before the High Court, it was again contended  by the  assessee that since he had submitted a return under  s. 22(3) of the Act on January 5, 1950, the assessment, if any, had to be completed before March 31, 1950, as required by s. 34(3)  of the Act.  He also contended that he  was  entitled under s. 22(3) to make a " voluntary " return on the date he did,  and  with  a voluntary return  before  the  Income-tax Officer,  there  was no scope for the issuance of  a  notice under  s. 34.  The High Court upheld the contentions of  the assessee, and gave its opinion that the Department ought  to have  issued a notice under s. 22(2) within  the  assessment year, and if no return was made within the time fixed by the notice, the Department should have proceeded under s.  23(4) to a ’best judgment’-assessment.  The other alternative  for the Department was to issue a notice under s. 34 of the Act, if  the  period  for sending a notice  under  s.  22(2)  had expired.  But it could not issue a notice under s. 34  after a return was already made before it, and the benefit of  the extended period of limitation for assessment available under the  first proviso to sub-s. (3) of s. 34 of one  year  from the  service of the notice under sub-s. (1) of that  section was  not available in this case.  The High Court  granted  a certificate of fitness, and hence this appeal. The  arguments which were urged before the High  Court  were all  raised in this Court by the parties.  The case  of  the Department was supplemented by an argument that, inasmuch as the  assessee had suppressed his income or  given  incorrect particulars thereof, the period during which action under s. 34 could be taken was the extended one of 8 years. In  the  arguments before us, our attention was drawn  to  a cleavage of opinion between the Bombay High 118 Court  on  the one hand and the Calcutta High Court  on  the other.  While the Bombay High Court seems to be of the  view that  a " voluntary " return showing a nontaxable income  is

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still  a  good return for all purposes under  the  Act,  the Calcutta High Court is of the view that what s. 22(1) of the Act requires is a return of  taxable income and not a return of income, which shows a loss or is below the taxable limit. It  appears  that at one time the Calcutta High  Court  also entertained  the  view that such a return was no  return  at all,  but  it was explained later that this meant  that  the return  was ineffective for the purposes of s. 22(1) of  the Act, though it might be a " return " being in the prescribed form.   The Bombay High Court also entertains the view  that the  assessment  proceedings commence with the  issue  of  a public notice, and that s. 34 of the Act cannot apply, where in  answer to the public notice a return is made whether  of taxable income or not.  The view of the Calcutta High  Court is that assessment proceedings commence either with a notice under s. 22(2) of the Act or with the filing of a return showing  taxable income. We are not here concerned with the quantum but only with the legality  of  the assessment.  The side  issue  whether,  in point  of  fact, the cash credits in the name of  the  wife, represented the income (if the husband does not survive  for decision.   Thus,  the only question is whether  the  notice issued  under s. 34 of the Act on February 27,  1950  (after the  assessee filed his " voluntary " return on  January  5, 1950)  and  the  assessment  thereon,  were  valid  in  law. Section 34(3) of the Act provides  that no assessment except the assessment within el.     (a)  of sub-s. (1) thereof  or under s. 23 to which el. (c) of    sub-s.   (1)  of  s.   28 applies,  shall be made after the expiry of four years  from the  end of the year in which income, profits or gains  were first assessable.  A proviso, however, allows one year  from the date of the service of the notice for the completion  of the  assessment.   It reads, omitting matters  not  relevant here: "  ... where a notice under sub-section (1) has been  issued within   the  time  therein  limited,  the   assessment   or reassessment to be made in pursuance of such 119 notice  may be made before the expiry of one year  from  the date  of  the  service of the notice  even  if  such  period exceeds  the  period  of . . . four years . .  .  "  It  is, therefore,  quite clear that the extra period  is  available only  if a notice under sub-s. (1) of s. 34 has been  issued within the time therein limited.  This takes us to s. 34(1). Section  34(1),  omitting parts not  relevant,  reads: " (1)If ........................................ (a)  the  Income-tax Officer has reason to believe  that  by reason of the omission or failure on the part of an assessee to  make  a return of his income under section 22,  for  any year...... I or (b)  notwithstanding  that  there has been  no  omission  or failure  as  mentioned  in clause (a) on  the  part  of  the assessee,  the  Income-tax  Officer has  in  consequence  of information in his possession reason to believe that income, profits  or  gains  chargeable to  income-tax  have  escaped assessment for any year ... he may in cases falling under clause (a) at any time  within eight  years  and in cases falliny under clause (b)  at  any time within four years of the end of that year, serve on the assessee. . . a notice . . . and may proceed to assess  such income. . . " It  would  appear  from this that if  the  return  filed  on January  5,  1950,  was a return of  income,  there  was  no failure  or omission on the part of the assessee, so  as  to bring  the matter within s. 34(1)(a) of the Act,  and  subs.

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(3)  of  s.  34 would then apply to the  case  limiting  the period to four years.  In that event, the assessment  should have been completed on or before March 31, 1950.  But if the return  made by the assessee was no return at all, then  the conditions under the first subsection of s. 34 obtained, and the  assessment  could be completed within one year  of  the date  of service of the notice (March 3, 1950), i.e.  on  or before  March 2, 1951.  In that event, the assessment  would be  valid.   The validity of the return in this  context  is tied to the validity of the notice and also vice versa. 120 Section 22 of the Act (omitting the parts not relevant)  may now be quoted: " (1) The Income-tax Officer shall, on or before the 1st day of  May,  in each year, give notice, by publication  in  the press...,  requiring every person whose total income  during the  previous year exceeded the maximum amount which is  not chargeable to income-tax to furnish, within such period  not being less than sixty days... a return.... setting  forth... his total income and total world income during that year: (2)  In the case of any person whose total income is, in the Income-tax Officer’s opinion, of such an amount as to render such person liable to income-tax, the Income-tax Officer may serve  a  notice upon him requiring him to  furnish,  within such period, not being less than thirty days... a return ... setting  forth ... his total income and total  world  income during the previous year: (3)  If  any  person has not furnished a return  within  the time allowed by or under sub-section (1) or sub-section (2), or  having  furnished a return under either  of  those  sub- sections, discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be at any time before the assessment is made." It  will be seen from this, that, as the Bombay  High  Court correctly  pointed  out, there is a time limit  provided  in sub-ss. (1) and (2) and the failure or omission occurs  when that   period   passes,  but  sub-s  (3)  allows   a   locus poenitentiae before the assessment is actually made.   There is  no  dispute that a return could be filed in  this  case, late though it was.  The controversy centres round the  fact that  the  return, when it was filed,  disclosed  an  income which  was below the maximum not chargeable to tax, and  the question is whether in such an event the Income-tax  Officer was precluded from issuing a notice under s. 34 of the  Act. There  has  been  in the past a  well-marked  difference  of opinion between the Bombay and the Calcutta High                             121 Courts, the leading cases in Bombay being Harakchand Makanji & Co. v. Commissioner of Income-tax (1), All India Groundnut Syndicate  Ltd.  v. Commissioner of  Income-tax(2)  and  the decision under appeal here, while the Calcutta view is to be found  in Commissioner of Agricultural Income-tax v.  Sultan Ali Gharami (3), R. K. Das & Co. v. Commissioner of  Income- tax  (4) and Commissioner of Income-tax v.  Govindlal  Dutta (5).  To these may be added P. S. Rama Iyer v.  Commissioner of  Income-tax  (6),  in which the  Madras  High  Court  has accepted the Bombay view. No  useful purpose will be served in discussing these  cases in  detail.  In some of them, the point need not  have  been taken  up for decision, though it was.  We shall refer  very briefly to the two rival views and the grounds on which they are  rested,  and in doing so, we begin  with  the  Calcutta decisions.  In Sultan Ali Gharami’s case (3), a notice under s.   24(1)  of  the  Bengal  Agricultural   Income-tax   Act (corresponding  to  s.  22(1) of the Act)  was  issued.   No

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return  was  filed.  Three years later, a  notice  under  s. 24(2) of that Act (corresponding to s. 22(2) of the Act) was served,  and  a return showing an income below  the  taxable minimum was filed.  The contention was that without a notice under s. 24(2) within the assessment year or a notice  under s.  38(1) (corresponding to s. 34 (1) of the Act)  the  best judgment’  assessment was bad.  The contention  further  was that  the return could be taken to be under s. 24(1)  or  s. 24(3).  Chakravarti, J. (as he then was) and Das Gupta,  J., held  that  a person who had no assessable  income  was  not placed  under  a  duty to file a  return,  that  the  return whether filed under s. 24(1) or s. 24(3) which had failed to show an assessable income could not possibly be ’treated’ as a return under s. 24(1) or even s. 24(3)when filed in answer to  a  notice under s. 24(2).  They further observed  at  p. 442: "  A  return under section on 24(1) is a return filed  by  a person  who  decides for himself that he had  an  assessable income in the previous year and by filing (1) (1948) 16 1. T. R. 119,   (4) (1056) 30 I. T. R. 439 (2) (1954) 25 1. T. R. R      (5) (1957) 33 1. T. R. 630 (3) (1951) 20 I. T R. 432(6) (1957) 32 I. T. R. 458 16 122 the  return he offers that income for assessment.. A  person who had no assessable income in the previous year is  placed under  no duty by a notice under section 24(1) to furnish  a return and a person who thinks, rightly or wrongly, that  he had no assessable income will furnish none.  A return  under section  24(1), whether filed within the time allowed  under the  section or filed subsequently under the  provisions  of section 24(3), will therefore show an assessable income... A return which showed no assessable income, could not possibly be  ’treated’  as a return filed under section  24(1)  or  a return called for under that section but filed under section 24(3),  when  in fact it was filed in response to  a  notice under section 24(2)." The  opinion here expressed was criticised in  the  judgment under  appeal,  and  in the next case, R. K.  Das  &  Co  v. Commissioner  of  Income-tax(1),  the  Calcutta  High  Court (Chakravarti,  C.J.,  and  Sarkar, J.)  explained  what  was really meant.  It is not necessary to refer to the facts  of that  case.  This is what Chakravarti, C.J., observed at  p. 449: "  It should be remembered’, I observed ’that the return  in the  present case is being sought to be treated as a  return under section 24(1), belatedly filed.’ And then I went on to say that a return under section 24(1) would only be filed by a  person  who  thought that he had  a  taxable  income  and therefore a return showing an income below the taxable limit could not be held, on a construction thereof, to be a return under section 24(1) and consequently the return in the  case we  were  then considering could not be treated  as  such  a return  filed under section 24(3).  To say that, was not  to say  that even a return filed in, compliance with  a  notice under section 22(2), if filed belatedly under section  22(3) could  not be a return showing an income below  the  taxable limit." This  left  the  matter somewhat ambiguous as  to  what  was really meant, and in Commissioner of Income-tax v. Govindlal Dutta(2),Chakravarti, C. J., and Guha, J., (1) (1956) 30 I.T.R. 439. (2) (1957) 33 I.T.R. 630. 123 again explained the true import of the law laid down.   They

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referred  to  s. 22(1) of the Act as it stood prior  to  the amendment  of 1953, and observed that under that  section  a person  was  required  to file a return only  if  his  total income during the preceding year exceeded the maximum amount which  was not chargeable to tax.  The  return  contemplated was  thus only a return of income and not a return  of  loss and  not  even a return of income, but a return  of  taxable income.   Not only had a person no duty but he had  even  no right  to  file a return voluntarily, if he had  suffered  a loss,  to ’report’ that loss.  The learned Judges  concluded that  it  was  a complete mistake to  think  that  s.  22(3) provided for the filing of a voluntary return showing  loss, at any time, before assessment.  That section, they  opined, contemplated the filing of a return of taxable income, and a return  not showing such income was not a return at  all  in law. The Calcutta view, as shown above, really proceeds upon  the wording  of s. 22(1).  It lays down that the  public  notice requires  only  persons having an income above  the  taxable limit  to  make a return.  A person who has no  such  income need not make a return, and if he does make a return, it  is not a return which need be considered, being not a return in law. It is a little difficult to understand how the existence  of a  return can be ignored, once it has been filed.  A  return showing  income below the taxable limit can be made even  in answer  to  a notice under s. 22(2).  The  notice  under  s. 22(1) requires in a general way what a notice under s. 22(2) requires of an individual.  If a return of income below  the taxable  limit is a good return in answer to a notice  under s.  22(2),  there is no reason to think that a return  of  a similar  kind in answer to a public notice is no  return  at all.   The conclusion does not follow from the words  of  s. 22(1).  No doubt, under that sub-section only those  persons are required to make a return, whose income is above taxable limits,  but  a  person may  legitimately  consider  himself entitled to certain deductions and allowances, and yet  file a return to be on the safe side.  He may show his income and the 124 deductions and allowances he claims.  But it may be that  on a correct processing his income may be found to be above the exempted  limit.   No doubt, it is futile for a  person  not liable  to tax to rush in with a return, but the  return  in law  is not a mere scrap of paper.  It is a return, such  as the assessee considers, represents his true income. We  are unable (and we say this with due respect) to  accept the  view  adumbrated in the Calcutta cases.   The  contrary view  is expressed by the Bombay High Court in  the  earlier case of Harakchand Makanji & Co. v. Commissioner of  Income- tax  (1)  and in the judgment under appeal.  That  view  was accepted  by  the Madras High Court in P. S.  Rama  Iyer  v. Commissioner of Income-tax (2) and also, in our opinion,  is the  sounder  view of the two.  In the earlier  of  the  two Bombay  cases,  Chagla, C. J., and Tendolkar, J.,  held  (as stated in the head note): " Notice under section 34 is only necessary if at the end of the assessment year no return has been made by the assessee, and  the authorities wished to proceed under section  22(2), but where the assessee himself chooses voluntarily to make a return, no question can arise under section 34 of assessment escaping,  and therefore there is no necessity to serve  any notice under section 34." This represents the law applicable to the facts as they  are to be found in this case.  In the assessment year no  return

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of  income  was filed, nor was any notice  served  under  s. 22(2).   There  was, however, the general  notice  under  s. 22(1).   A  return in answer to that notice could  be  filed under  s. 22(3) before assessment, and for this there is  no limit of time.  It was filed on January 5, 1950.  There  was nothing to prevent the Income-tax Officer from taking up the return and proceeding to assess the income of the  assessee. It  was open to him, if there was  sufficient  justification for  it, to hold that the amount noted in the  footnote  was really  the assessee’s income, in which case  an  assessable income  would have been found and the tax could  be  charged thereon.  If the Income-tax Officer had acted on that return and assessed the assessee (1) (1948) 16 I.T.R. 119. (2) (1957) 321, T. R. 458. 125 before March 31, 1950, the assessment would have been valid. He chose to ignore the return, and served on the assessee  a notice  under s. 34(1).  This notice was  improper,  because with the return already filed there was neither an  omission nor a failure on the part of the assessee, nor was there any question  of  assessment ’escaping’.  The  notice  under  s. 34(1) was, therefore, invalid and the consequent  assessment equally  so.  We accordingly agree with the  judgment  under appeal. Before  leaving  this  case,  we  may  refer  to  two  other arguments, which were raised.  Mr. Rajagopala Sastri pointed out  that an assessee might file the ’voluntary’  return  on the last day showing income less than the taxable limit, and the  Department would, in that case, be driven  to  complete the  assessment proceedings within a few hours or  lose  the right  to  send  a notice under s. 34(1).   An  argument  ab inconvenienti  is not a decisive argument.   The  Income-tax Officer  could have avoided the result by issuing  a  notice under  s. 23(2) and not remaining inactive until the  period was  about to expire.  Further, all laws of limitation  lead to some inconvenience and hard cases.  The remedy is for the legislature  to  amend  the law suitably.   The  Courts  can administer  the laws as they find them, and they are  seldom required to be astute to defeat the law of limitation.  This argument  is  thus  no  answer  to  the  clear  meaning  and implications of the Act. The  other argument was that the return was not a true  one, and  fell within the mischief of cl. (c) of sub-s.(1) of  s. 28,  and  that, therefore, the period  during  which  action could  be taken was the extended one of 8 years.  The  short answer  to  that  is  that  this  was  not  a  part  of  the Department’s case at any prior stage, and cannot be  allowed to be raised now. In  our  opinion,  the answers given by the  High  Court  of Bombay were correct in all the circumstances of this case. The appeal thus fails, and is dismissed with costs. Appeal dismissed. 126