P.K.Banerjee, J. - (1.)This Rule is directed against the notice under Section 34 of the Indian Income-tax Act, 1922, under Section 23(2) for the assessment years 1949-50, 1950-51 and 1951-52. The petitioner, Messrs. Hungerford Investment Trust Ltd., having its registered office at Singapore, Malaya, holds all the shares of Messrs. Turner Morrison and Company Ltd. The Income-tax Officer passed an order under Section 23A before its amendment in 1955 in the case of Messrs. Turner Morrison & Co. Ltd. and proceedings were taken under Section 34 by the Income-tax Officer in order to tax the dividend deemed to have been declared under Section 23A in favour of M/s. Hungerford Investment Trust Ltd. for the assessment yours 1949-50, 1950-51 and 1951-52. The Hungerford Investment Trust Ltd. filed its return. It appears that the Income-tax Officer obtained approval of the Commissioner of Income-tax on 24th March, 1954, and thereafter issued the notice under Section 34 in the name of M/s. Turner Morrison & Co. Ltd., agents of M/s. Hungerford Investment Trust Ltd., for the year 1949-50. Though the approval was made as aforesaid, the notice under Section 34 was issued against Hungerford Investment Trust Ltd. Return was filed by Turner Morrison & Co. Ltd. as agents of Hungerford Investment Ltd. and the status was shown as non-resident. For the year 1950-51, the notices were issued on Hungerford Investment Trust Ltd. for the income in respect of tax dividend deemed to have been declared under Section 23A. Similarly, in 1951-52 also notice was served on the Hunger-ford Investment Trust Ltd. The petitioner's agent, M/s. Turner Morrison Co. Ltd., filed return mentioning the name of the assessee as M/s. Hungerford Investment Trust Ltd. and the address given was of Singapore. Thereafter, it appears that the petitioner was not finally assessed. Turner Morrison & Co. Ltd. was, however, assessed. The Income-tax Officer assessed M/s. Turner Morrison & Co. Ltd. as agents of Hungerford Investment Trust Ltd. and taking the status as non-resident. Being aggrieved by the said assessment order, M/s. Turner Morrison & Co. Ltd. preferred an appeal to the Appellate Assistant Commissioner who disposed of the same in favour of M/s. Turner Morrison & Co. Ltd. In so far as the assessment for the years 1949-50, 1950-51 and 1951-52 were concerned the Appellate Assistant Commissioner set aside the assessments against M/s. Turner Morrison & Co. Ltd. with the following observations and directions:
"9. In view of the various reasons discussed above the assessment for 1949-50 made by the Income-tax Officer on the resident company, M/s. Turner Morrison & Co., as agents of the non-resident company, M/s. Hungerford Investment Trust Ltd., in order to tax the deemed dividend under Section 23A is set aside and the Income-tax Officer is directed to make a direct assessment on the non-resident company. The assessee is the non-resident company and the Income-tax Officer has wrongly adopted the alternative machinery of assessment on the resident company as agents of the non-resident company which machinery was barred by limitation and hence the Income-tax Officer had no alternative but to make the direct assessment on the non-resident company and, therefore, the Income-tax Officer is directed to make the assessment direct on the non-resident company to tax the deemed dividend under Section 23A. In connection with the assessments for 1950-51 and 1951-52 as stated earlier, the notices under Section 34 were validly issued taking the assessee as non-resident company directly and the returns of income were also submitted showing the assessee as non-resident company and, therefore, the proceedings are set aside from the date of issue of notice under Section 23(2) and the Income-tax Officer is directed to make the assessments on the non-resident company after giving fresh opportunity to the assessee under Section 23(2)."

(2.)Shri P. T. Sanyal, on behalf of the appellant, contends that the Appellate Assistant Commissioner cannot give any direction to make fresh assessments directly on the non-resident company merely because the present assessment made on the resident company as agents of the nonresident company are invalid and it is stated that according to Section 34(3) the direction can be given only in respect of the same assessee and not in respect of another assessee. In view of the reasons stated above, the assessee is the non-resident company, M/s. Hungerford Investment Trust Ltd., and in connection with the assessments for 1950-51 and 1951-52, the Income-tax Officer initiated proceedings for direct reassessment on the non-resident company, but inadvertently in the assessment order the machinery was shown as the resident company as agents of the nonresident company and, therefore, in my opinion the Appellate Assistant Commissioner is justified in giving a direction to make fresh direct assessment on the non-resident company as the assessee all throughout remains the non-resident company and the direction visualises only a change in the machinery for the assessment. Similarly, in connection with the assessment of 1949-50, though the Income-tax Officer sought to adopt the machinery of assessment on the non-resident company through the resident-agent, the Appellate Assistant Commissioner is justified in giving direction to make a direct assessment on the non-resident company as the assessee remains the non-resident company and only the machinery of assessment is sought to be changed."
(3.)Thereafter, the respondent by letter dated October 26, 1961, issued notice on the Hungerford Investment Trust Ltd. (in liquidation). Being aggrieved by the said notice the petitioner moved this court and obtained the present Rule. The notice was said to have been served on 28th March, 1961.