BANERJEE, J. - (1.) ONE Muhammad Ibrahim Barry, now deceased, was a man of property. During his lifetime, he dedicated two premises belonging to him, namely, premises No. 11, Lindsay Street, and No. 8, Kanai Seal Street, Calcutta, as wakf property, under a deed of wakf dt. 5th Feb., 1927. By another deed, dt. 22nd June, 1930, the said Muhammad Ibrahim Barry appointed the petitioner as mutawali to the wakf estate. In addition to the properties dedicated as wakf, the said Muhammad Ibrahim Barry had other properties which were his personal properties. Muhammad Ibrahim Barry died in January, 1937.
(2.) FOR the asst. yrs. 1958-59 to 1960-61, the ITO, "D" Ward, District III(2), Calcutta, added the income from the personal properties left by the Muhammad Ibrahim Barry to the income of the wakf properties and made an assessment on the total income. That assessment was set aside on appeal and the AAC, by an order dt. 29th Dec., 1962, directed that the income from the wakf properties should be separately assessed. Pursuant to the order of the AAC, the ITO started separate assessment of the income from the wakf properties as also from the personal properties of Muhammad Ibrahim Barry, deceased. The income from the wakf estate was assessed for the asst. yr. 1958- 59, treating the assessee as "wakf estate of late Ibrahim Barry through Mutawalli Shaik Md. Sharri Barry," in the status of AOP. The tax was computed at the maximum rate under the proviso to s. 41(1) of the IT Act, 1922, on the theory that the shares of the beneficiaries under the wakf were not determinate. A copy of the assessment order for 1958-59 has been marked as exhibit "A" in this rule, by consent. In this rule, the petitioner has not challenged the assessment of tax for the year 1958-59. Mr. I.P. Mukherjee, learned advocate for the petitioner, stated that aggrieved by the application of the proviso to s. 41 (1) of the IT Act, 1922, on the income of the wakf property for the year 1958-59, the petitioner preferred an appeal to the AAC, which appeal he stated was pending. For the asst. yrs. 1959-60 to 1961-62, computation of tax on the income assessed was also made at the maximum rate, without assigning any reasons whatsoever. The petitioner felt aggrieved by the computation of tax at the maximum rate for those years and moved this Court, under Art. 226 of the Constitution, praying for a writ of certiorari for the quashing of the orders of assessment and for a writ of mandamus directing the respondents not to take further action under the orders and obtained this rule. Mr. I.P. Mukherjee, learned, advocate for the petitioner, contended that the order of assessment, applying the maximum rate of tax, for the year 1958-59, did not operate as res judicata for the subsequent years and if the ITO wanted to apply the maximum rate of tax for the years 1959-60 to 1961-62, he should have stated the reasons for doing so in the several assessment orders. In support of this contention that the assessment order, applying the maximum rate for the year 1958-59, did not operate as res judicata for the subsequent years, Mr. Mukherjee drew my attention to the observation of the Supreme Court in Instalment Supply (P) Ltd. vs. Union of India AIR 1962 SC 53 : (1961) 12 STC489 (SC), in which Sinha speaking for the Court, observed as follows : "It is well-settled that in matters of taxation there is no question of res judicata because each year's assessment is final only for that year and does not govern later years because it determines only the tax for a particular period [see the decision of House of Lords in Society of Medical Officer of Health vs. Hope (1960) AC 551, approving and following the decision of the Privy Council in Broken Hill Proprietary Co. Ltd. vs. Broken Hill Municipal Council (1926) AC 94 (PC)]." He also relied on another judgment of the Supreme Court taking the same view, namely, New Jehangir Vakil Mills Co. Ltd. vs. CIT (1963) 49 ITR 137 (SC) : TC14R.379. That the order of assessment for the year 1958-59 did not operate as res judicata for the subsequent years admits of little doubt. But the question remains whether the ITO was bound to repeat the same reasons for applying the maximum rate of tax for the subsequent years also.
(3.) IN support of his contention that the ITO was bound to give his reasons, Mr. Mukherjee drew my attention, firstly, to what Thaver Brothers (1934) 2 ITR 230 (Rang). circumstances of the case. Since that was not done Mr. Mukherjee contended, there was an error apparent on the face of the record which would justify me in quashing the assessment order. I am unable to uphold this argument also. The maximum rate of tax may have been correctly applied on the assessment. There is nothing to show from the record that the application of the maximum rate must have been wrongly done. If the assessment had been challenged in appeal, the onus would have been on the taxing authority to justify the computation of tax at the maximum rate, in the facts and circumstances of the case. If the taxing authority failed there, the assessment of tax might have been set aside. Regard being had to the scope of this rule, I cannot hold that the failure to indicate the reasons for assessment at the maximum rate constitutes such an infirmity in the order that it must be quashed. I, therefore, discharge this rule but make no order as to costs.;