VENKATASWAMI, J. - (1.)THESE are a batch of four petitions giving rise to common questions of law and can be conveniently disposed of by a common order.
(2.)THE petitioner in all these cases is an ex-partner of a dissolved firm by name Srinivasa Weaving Factory. THE firm was assessed to income-tax under the Indian IT Act, 1922, to be hereinafter referred to as "the Act". THE four petitions relate to the asst. yrs. 1952-53 to 1955-56. Subsequent to the assessment in respect of all those years, ITO was of the opinion that the firm was under- assessed inasmuch as certain income had escaped assessment. Consequently, the ITO, after obtaining the sanction from the CIT, Bangalore, issued to the firm a notice under S. 34 of the Act in respect of the above assessment years. Some time after the issue of the aforesaid notice, further notice under S. 23(2) of the Act came to be issued. Since the assessee did not comply with the requirements of the notice issued under S. 23(2), the ITO completed the assessment as per the provisions of S. 23(4) r/w S. 34 of the Act. THEreafter, the assessee filed an application under S. 27 of the Act before the ITO. That application being dismissed, an appeal was preferred before the AAC concerned. By an order dt. 19th Sept., 1967, the AAC allowed the appeal and cancelled the assessment with a direction that the ITO should make a fresh assessment in accordance with law. Pursuant to the aforesaid order, the ITO issued a notice under ss. 22(4) and 23(2) of the Act to the assessee. Aggrieved by this procedure, the present petitioner, an ex-partner of the dissolved firm, has approached this Court with these petitions.
The reliefs sought for by him are for the issue of a writ of certiorari quashing the notice issued under S. 34(1)(a) of the Act and for a writ of prohibition prohibiting the ITO from assessing the firm of Srinivasa Weaving Factory in pursuance of the proceedings initiated by him.

Although one of the grounds urged in the petitions relates to the constitutional validity of S. 297 (2)(d)(i) of the IT Act, 1961, for the reason that it was violative of Art. 14 of the Constitution, Sri K. Srinivasan, the learned counsel appearing on behalf of the petitioner in all these petitions, confined his submission to the following two questions: (1) That having regard to the provisions of cls. (ii) and (iii) of the first proviso to S. 34(1)(a) of the Act, the sanction of the Central Board of Revenue was necessary for the issue of a notice for the purpose of taxing the income which had escaped assessment under that section. Since no such sanction has been obtained, the proceedings were vitiated for want of service of a valid notice on the assessee under S. 34(1) of the Act. (2) That in view of the order of cancellation of assessment by the AAC, any fresh assessment made pursuant to S. 27 of the Act should be instituted once again by the issue of a fresh notice under S. 34(1) of the Act. He submits that the words "escaping assessment" apply equally to cases where a notice was received by the assessee but resulted in no assessment at all and cases where due to any reason no notice was issued to the assessee and, therefore, there was no assessment of his income [see CIT vs. Narsee Nagsee & Co. (1960) 40 ITR 307 (SC)]. It is, therefore, his submission that once the assessment made under S. 23(4) r/w S. 34(1) of the Act was cancelled, the proceedings must be deemed to have resulted in no assessment at all, thus necessitating the institution of proceedings to tax income escaping assessment right from the inception, i.e., the issue of a notice under S. 34(1) of the Act. He also submits that the words "fresh assessment" occurring in S. 27 of the Act should be understood to mean "reassessment", thus requiring the proceedings to be instituted de novo under S. 34(1) of the Act. In support of this argument, he invited attention to the provisions of the second proviso to S. 34(3) of the Act, wherein there is a reference to reassessment made under S. 27 of the Act. From this proviso he wants us to understand that the legislature itself had understood the words "fresh assessment" occurring in S. 27 as equivalent to "reassessment". Viewed from this angle also any "fresh assessment" to be made under S. 27 of the Act can be validly commenced only by the issue of a notice under S. 34(1) of that Act.

(3.)ON the first of the above questions Sri S. R. Rajasekharamurthy, the learned counsel appearing on behalf of the Revenue, submits thus : Cls. (ii) and (iii) of the first proviso to S. 34(1) of the Act, in so far as it is relevant for the purpose of the present contention, postulate that no notice under s. 34(1)(a) of the Act shall issue without the prior sanction of the Central Board of Revenue in cases in which income escaping assessment amounts to or is likely to amount to one lakh of rupees or more, and a period of 8 years have elapsed after the expiry of the relevant assessment year. Hence, it follows that if a notice under S. 34(1) is issued within 8 years from the end of the assessment year, no sanction by the Central Board of Revenue would be necessary, notwithstanding the income escaping assessment amounted to one lakh of rupees or more. ON behalf of the Revenue a counter-affidavit has been filed giving the dates on which notices under S. 34(1)(a) were issued, all of them clearly falling within the time limit of 8 years referred to in the proviso. ON the next question propounded by Sri K. Srinivasan, Sri Rajasekharamurthy contends that once the assessment has been cancelled or set aside under S. 27 of the Act, or under S. 146 of the IT Act, 1961, by an appellate authority, the ITO is competent to make a fresh assessment without issuing a notice under S. 34 of the Act or under S. 147 of the IT Act, 1961. According to him, the assessee had never questioned the issue of notice under S. 34(1)(a) of the Act in any of the proceedings which resulted in a fresh assessment to be made under S. 27 of the Act. What the assessee had to satisfy the ITO was that he was prevented by sufficient cause from complying with the terms of the notice issued to him under S. 23(2) of the Act. Hence, any direction to make a fresh assessment under S. 27 of the Act would merely mean that the ITO should proceed to reopen the proceedings from the stage at which a defect or an error, which was made a ground for an order under S. 27, crept in.
We are not inclined to agree with the contention urged on behalf of the assessee. On the first question, Sri K. Srinivasan relied on a decision of this Court in W. P. No. 468 of 1958 (G. J. Coelho vs. Addl. ITO), wherein the provisos to S. 34(1)(a) of the Act were interpreted to mean that when an " escaped income " was or was likely to be a lakh of rupees and more, the ITO might issue a notice even after expiry of the period of 8 years referred to in the proviso provided the reassessment is made with the concurrence or approval of the Central Board of Revenue. In cases where the escaped income is less than a lakh of rupees, what is necessary is the approval or satisfaction of the CIT and not of the Central Board of Revenue. It also laid down that the period of 8 years within which the ITO has got to issue the notice is the period of limitation prescribed by cl. (ii) of the first proviso to S. 34(1)(a). This decision has been subsequently reversed by the Supreme Court. But the submission of Sri Srinivasan is that the ratio of the case as enunciated in the decision of this Court was not disturbed in any manner by the Supreme Court. Even if that be so, we are unable to see how this decision could be of any assistance to the petitioner. In the counter-affidavit filed on behalf of the Revenue, the dates of expiry of the time limit of 8 years, the dates of issue of notices under S. 34(1)(a) of the Act and the dates of service of such notices on the assessee have been clearly specified. These dates are not controverted by the petitioner in any manner. It is clear, therefore, that all the notices under S. 34(1)(a) of the Act were issued and actually served on the assessee before the expiry of the period of limitation of 8 years referred to in the relevant provisos of that section. That being so, the question of securing the prior sanction of the Central Board of Revenue would not at all arise. The relevant provisos enjoin securing of prior sanction of the Central Board of Revenue only in cases where "escaped income" is one lakh of rupees or more and the time limit of 8 years has elapsed, after the expiry of the relevant assessment year. Unless both the requirements are present the question of securing sanction of the Central Board of Revenue could not arise. In the instant case, all the notices to tax the income escaping assessment have been issued within the period of 8 years and as such no further sanction of the Central Board of Revenue is called for. We are, therefore, unable to accept the contention that the notice under S. 34(1)(a) of the Act was invalid.

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