D.N.SINHA,J. - (1.) THIS is a reference under s. 66(1) of the Indian IT Act made by the Tribunal in respect of two applications which were consolidated. The subject-matter of this reference is the assessment of the "assessee" for the years 1945-46 and 1946-47. It arises out of ITA Nos. 5990 and 5991 of 1956-57 before the Tribunal, Bombay Bench. The facts are briefly as follows : The assessee is a company having its registered office in London. On the 29th Oct., 1948, the assessment of the assessee was made under the Indian IT Act for the asst. yrs. 1945-46 and 1946-47. The status of the assessee was taken to be "resident and ordinarily resident" in the taxable territories. At the time when the two assessments were made, no question was raised by the assesses about any assessment having been made or likely to be made in Pakistan, and no application was made for taking any steps under the provisions of the Agreement for the Avoidance of Double Taxation between India and Pakistan (hereinafter referred to as "A.A.D.T."). In fact, not only was the assessment made, but the full amount of tax was paid on 10th Dec., 1948, in respect of 1945-46 and on the 10th Jan., 1949, in respect of 1946-47. It is now stated that on the 27th Feb., 1950, notice was issued by the ITO, Karachi, whereby assessment proceedings against the assessee were initiated in Pakistan for the relevant asst. yrs. 1945-46 and 1946-47. It is further stated by the assessee that a letter was written on the 21st March, 1950, to the ITO, Central Circle V, Calcutta, on behalf of the assessee, intimating to him about the said notice and enquiring as to whether any tax for these years would be payable in Pakistan and whether a refund would be granted in India to the extent of the tax payable by the company in Pakistan. This letter was never received by the said officer. On the 28th March, 1950, another letter was written on behalf of the assessee to the said officer, the relative part whereof is as follows : "Due to the delay caused in the completion of their assessments in India and the U.K. by the revision of their excess profits tax assessments in India and the need to complete their assessments in the Indian States, it will not be possible for us to submit on their behalf their regular claims in respect of the reliefs due to them by the end of the current month. In accordance with our practice, therefore, we, on behalf of the said company, hereby lodge generally their claims to all double or treble taxation reliefs that may be due to them on account of any tax paid in the U.K. any Indian State or centrally administered area or Burma and undertake to submit their regular claims in respect of such reliefs as soon as we are in a position to do so. We shall be obliged if you will, as in the past, confirm that their claims have been duly registered and their applications in respect of them will be admitted as and when they are made after 31st March, 1950."
(2.) ON the 23rd May, 1950, asimilar letter was written, the relevant part whereof is as follows: "As stated in our letter under reference, we are anxious to know whether there can be any liability to tax in Pakistan for the earlier years (1944-45 to 1946-47) by reason of the fact that the assessment for any of these years was completed in India after 1st April, 1948. We do not see the basis for any such assessments in Pakistan for the years prior to 1947-48 under the Agreement for the Avoidance of Double Taxation between the two Dominions. In any event, we shall be glad if you will confirm that any such tax that may be payable in Pakistan will be refunded by India." In answer to the last-mentioned letter the ITO informed the assessee that its letter of the 21st March, 1950, had never been received. He further proceeded to say as follows: "Regarding the points raised in the penultimate paragraph of your letter dt. 23rd May, 1950, I am not now in a position to say whether there can be any liability to tax in Pakistan for the asst. yrs. 1944-45 to 1946-47. However, if any assessment is raised in Pakistan for any of these years, the question as to whether the tax payable in Pakistan will be refunded by India will be considered on your furnishing the necessary particulars and the certificate of assessment in Pakistan for that year. "
(3.) THE proceedings by the Pakistan authorities appear to have been completed on or about the 15th Dec., 1953. On the 30th Dec., 1953, a claim was made on behalf of the assessee in respect of assessments for the years 1945-46 and 1946-47, a copy of which appears in the paper- book at pages 40-41. It will appear from the claim, that what was asked for is that certain abatements should be granted. There was no mention of any refund. The only particulars given were of a consolidated sum denoting the income arising in Pakistan for the relevant assessment years followed by the amount of income-tax and super-tax thereon calculated at the rate of 81 ps., from which the D.T.T. relief already granted has been deducted, showing the "abatement due", which was claimed. On the 2nd Feb., 1954, the ITO intimated to the assessee as follows : "Your claim for abatement and refund under s. 49AA submitted in your letter No. A/cs. L. 127 D/O (7386) dt. 30th Dec., 1953, has been rejected as the claim made was much out of time." ;