A.N.Sen, J. - (1.) In this reference under Section 66(1) of the Act, the following question of law has been referred by the Tribunal to this court : " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in applying the second proviso to Section 34(1) of the Income-tax Act ? "
(2.) The relevant facts have been set out by the Tribunal in the statement of the case. However, the material facts may be set out.
(3.) The statement relates to the assessment year 1952-53, the corresponding previous year being the calendar year 1951. The respondent-company, M/s. Turner Morrison & Co. Ltd., Calcutta, was assessed for the relevant year as the agents of a non-resident assessee, namely, M/s. Hungerford Investment Trust Ltd. (in liquidation). The original assessment was made on 23rd December, 1953. The assessment was, however, reopened under Section 34(1)(b) by notice, dated 9th June, 1956, to include dividends amounting to Rs. 25,01,660 (net) deemed to have been distributed to the said non-resident assessee, as a result of the application of Section 23A on M/s. Turner Morrison & Co. Ltd. The reassessment was assailed before the Tribunal on the ground that the notice under Section 34 was issued after the expiry of the period of limitation prescribed by law. The Tribunal held that the assessment could be reopened in the present case only under Section 34(1)(b) and the assessee having been assessed as an agent of a non-resident principal, the second proviso to Section 34(1) applied and the limitation for reopening the assessment in such a case was only two years from the end of the year of assessment. In the present case, the Tribunal found that the notice under Section 34(1) having been issued on 9th June, 1956, long after the expiry of the prescribed period of limitation, was illegal and the Income-tax Officer had no jurisdiction to reopen the assessment for the year under reference. The order of the Tribunal is a short one and may be conveniently set out : JUDGEMENT_762_ITR113_1978Html1.htm;