Decided on April 01,1935



BEAUMONT, C. J. - (1.) -
(2.) THIS is a case stated by Commissioner of Income Tax under section 66(2) of the Indian Income Tax Act. The question arises in this way. The assessee carries on business at Nasik as a money-lender, and he also buys and sells gold and silver. He buys ornaments, turn them into metal, and sells the in Bombay. He keeps no book of account, and therefore the Income Tax Officers was not able to ascertain with accuracy what the profits were from the sales of gold and silver, but in the year of assessment, 1932-33, the Income Tax Officer added to the assessees income a certain percentage of sale of gold and silver, and on that basis he made assessment under section 23(3) of the Act. In the next year of assessment a different Income Tax Officer dealt with the matter, and he came to the conclusion that, as the price of gold had risen rapidly during the last two month of the previous year of assessment, the Income Tax Officer had under-estimated the profits derived from the sale of gold; he considered that the flat rate on the sale of gold should have been fifteen per cent. instead of three per cent. and on that basis he came to the conclusion that income had escaped assessment for the year 1932-33, and he therefore re-assessed the income under section 34, Income Tax Act. There was an appeal to the Assistant Commissioner, who agreed generally with the view taken by the Income Tax Officers, but some reasons, which is not apparent, he assessed the income on the sale of gold at four per cent. on the sale price, and the income on the silver at ten per cent. on the sale price; that is to say, he raised the original rate by one per cent. in the case of gold and five percent in the case of silver, and made assessment on that basis. The question which the Commissioner has raised is : Whether in the circumstances of the case, a part of income, profits and gains from sales of gold in the year 1987 Samvat can be said to have escaped assessment within the meaning of section 34, Income Tax Act, 1922, at the time of original assessment for the year 1932-33. That question purports to be a summary of three questions which the assessee had desired to raised, and which related to the income generally of the assessee and covered income from the sale of silver as well as his income from the sale of gold. I think the commission in the question raised by the Commissioner, of any reference to the sale of silver must be by inadvertance. Clearly, having regard to the assessment made by the Assistant Commissioner, the question should cover both the sale of gold and of silver in Samvat 1987. The question should be amended in that way.
(3.) WE have had some discussion as to the meaning and scope of section 34, Income Tax Act. That section provides that for any reason the income, profits or gains chargeable to income tax has escaped assessment in any year or has been assessed at too low rate, the Income Tax Officer may, within a time limit therein specified, re-assess such income. It seems to me that the burden of showing that income has escaped assessment or that it has been assessed at too low a rate lies on the Commissioner. WE have been referred to a decision of the full bench of the Rangoon High Court in Commissioner Of Income tax, Burma v. U LU NYU as supporting the proposition that income from a particular source cannot be re-assessed under section 34. I agree with the actual decision in that case which was one where the Income Tax Officer of subsequent year disagreed with the estimates of the officers in the previous year, but in the course of his judgment the learned Chief Justice said that the Income Tax Officer had no jurisdiction to revise the assessment for the previous year which was completed and had become final. If that proposition is correct, it would confine section 34 to cases in which a source of income has escaped assessment, which in my view is too narrow limit. I feel no doubt that if it were proved that Rs. 2,000 had been received as income from a particular source, while the assessment was only on Rs 1,000, or if it were proved that the assessment was at a flat rate of three percent, whilst in fact profits at higher rate had been made, then income would have escaped assessment within the meaning of section 34. This view was taken by Calcutta High Court in In re The Anglo Persian Oil Co. (India) Limited, and by Madras High Court in Commissioner of Income Tax, Madras v. Raja of Parlakimedi, with both of which decisions I agree. The question in this case is really whether the Income Tax Officer has proved that any income escaped assessment. In my opinion all that the evidence comes is that the Income Tax Officer of the subsequent year that the Income Tax Officer of the earlier year made a wrong assessment as to a income, and he gives his reasons for so thinking. But he does not prove that in fact that the assessee received any greater income in respect of which he was assessed. It is not suggested that any facts which were before the second Income Tax Officer were not before the first Income Tax Officer. I guard myself against expressing any opinion upon what the position would be if it were shown that the assessee has given false evidence or suppressed material facts, and thereby induced the assessment made by first Income Tax Officer. That is not the case here. The first Income Tax Officer knew, or had the means of knowing, that the price was rising and with the fact that before him he estimated the profits at a particular rate on sales, and the second Income Tax Officer does not know more than say that in his opinion on the facts the estimate of the first Income Tax Officer was obviously too low. That is not the proof that any income escaped assessment or was assessment at too low a rate. In my opinion the question, amended as I have suggested, must be answered in the negative. The assessee to have his taxed costs from the Commissioner on the Original side scale.;

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