- (1.) - The Income-tax Act, 1961 replaced the Indian Income-tax Act, 1922 w.e.f. 1-4- 1962. The repeal of the earlier Act necessitated the enactment of transitional provisions to facilitate the change over. Perhaps the simplest course would have been to provide that the new Act would apply to all proceedings for the assessment year 1962-63 and thereafter. The legislature, however, evolved a more complicated procedure. While Section 297(1) of the new Act declared that the Indian Income-tax Act, 1922 stood repealed by the new Act, subsection (2) of the above section made detailed and meticulous provisions in clauses (a) to (m) as to whether the new Act or the old Act will govern in the various situations dealt with therein. These provisions have led to a lot of litigation and the controversy in this appeal also arises out of one such provision. We are here with the scope of proceedings for reassessment in respect of assessment year prior to 1962-63 and the answer to the question before us turns on the provisions of the following two sections of the 1961 Act: "Section 297 297(1) xxx xxx xxx (2) Notwithstanding the repeal of the Indian Income-tax Act, 1922 (11 of 1922) (hereinafter referred to as 'the repealed Act') xxx xxx xxx xxx (d) where in respect of any assessment year after the year ending on the 31 st day of March 1940- (i) a notice under Section 34 of the repealedAct had been issued before the commencement of this Act, the proceedings in pursuance of such notice may be continued and disposed of as if this Act had not been passed; (ii) any income chargeable to tax had escaped assessment within the meaning of that expression in Section 147 and no proceedings under Section 34 of the repealed Act in respect of any such income are pending at the commencement of this Act a notice under Section 148 may subject to the provisions contained in Section 149 or Section 150 be issued with respect to that assessment year and all the provisions of this Act shall apply accordingly." Section 150 "150(1) Notwithstanding anything contained in Section 149 the notice under Section 148 may be issued at any time for the purpose of making an assessment or reassessment or recomputation in consequence or, or to give effect to, any finding or , direction contained in an order passed by any authority in any proceeding under this Act by way of appeal, reference or revision". (Underlining ours)
(2.) We may proceed now to set out how the question arises in the present case : The appeal arises out of an order of the High Court in a writ petition filed by one Mahadeo Prasad Bais (since deceased, represented by his legal representatives) challenging reassessment proceedings initiated against him for the assessment years 1953-54 to 1963-64, The appeal is, however, restricted to the assessment years 1953-54 to 1961-62. Up to assessment year 1948-49, the appellant was .being assessed as the Karta of a Hindu Undivided Family consisting of himself, his mother, his wife and three sons. For the assessment year 1949-50 and subsequent years up to 1961-62 he had filed a return in his individual capacity on the footing that there had been a total partition of the family within the meaning of Section 25A of the Indian :Income-tax Act, 1922 and that he was assessable in respect of the income from the properties of the family allotted to him at the partition. In the alternative, he claimed partial partition of some of the joint family properties. Both these claims were initially negatived and the entire income was assessed in the hands of the Hindu Undivided Family. The returns filed by the appellant in his individual capacity were finalised by holding that there was no income assessable in his individual capacity. The Hindu Undivided Family went up in appeals and ultimately the Tribunal accepted the claim of partial partition in respect of some of the properties with effect from different dates. This conclusion of the Tribunal was also affirmed by the High Court in the decision reported as Mahadeo Prasad Rais v. Income-tax Officer, (1972) 84 ITR 48 (All), which related to the assessment years 1956-57 to 1958-59. Consequent on these decisions of the Tribunal and the High Court, the income from some of the erstwhile family properties stood excluded from the assessment of the Hindu Undivided Family and became liable to be included in the hands of the present appellant. The assessment for 1949-50 and subsequent years up to 1961-62 on the family had been completed and the appeals and reference disposed of under the Indian Income-tax Act, 1922.
(3.) The original assessments made on the appellant as an individual for the assessment years 1953-54 to 1961-62 had been completed under the Indian Income-tax Act, 1922. In these assessments no income from the erstwhile joint family properties had been included as the officer was of the view, as in 1949-50, that it was assessable in the hands of the family. There were no proceedings initiated or pending under S. 34 of the 1922 Act in respect of these assessment years as on 1-4-1962. Quite sometime after the High Court had decided the reference for 1949-50 in the case of the family, the Income-tax Officer thought of steps to include the income assessable in the hands of the appellant consequent on the decisions of the Tribunal and the High Court which he had failed to assess earlier. He, therefore,-served on the appellant on 19-3-1977 notices for reassessment, as required by S. 297(2)(d)(ii), under S. 148 of the 1961 Act. The appellant resisted these proceedings, inter alia, on the ground that the notices were barred by limitation. The department, however, contended that, though normally reassessment proceedings had to be initiated within a period of four, eight or sixteen years as the case may be, under the then provisions of S. 149 of the 1961 Act, the reassessment proceedings in this case were saved by the provisions of S. 150(1) of the 1961 Act set out earlier. This contention of the department has been accepted by the High Court in the decision under appeal before us which is reported in (1980) 125 ITR 49: (1978 Tax LR 344) (All).;