D.N.Sinha, J. - (1.) The facts in this case arc shortly as follows: The petitioner carries on business in Calcutta. On 29-1-1951, ho was assessed for income-tax for the assessment year 1947-48 on a total income of Rs. 1,15,5327- by the Income-tax Officer-Companies District IV, Calcutta. On the 6th of February 1951, notice under Section 29 of the Indian Income-tax Act (hereinafter referred to as the "Act") was issued demanding payment of Rs. 39,337/4/0 as tax. The petitioner paid that amount. On the 19th of March 1956, a notice was issued upon the petitioner under Section 34 of the said Act. In the said notice it was alleged that the Income-tax Officer had reason to believe that the income of the petitioner assessable to income-tax for the assessment year 1947-48 had escaped assessment and he proposed to re-assess the said income which had escaped assessment. The petitioner was called upon to make a return in the prescribed form. Although the notice was issued on 19-3-1956, it is not disputed and therefore it must be deemed to be admitted, that the notice was served upon the petitioner on 2-4-1956. A further notice under Section 22 (4) of the Act was issued on 10-1-1957. On 22-1-1957, third notice was issued under Section 23 (2) of the said Act.
(2.) The short point that calls for decision in this case turns upon an amendment of Section 34 of the said Act. The relevant provision of Section 34 as it stood before the amendment effected by Section 18 of the Finance Act, 1956, which came into operation on 1-4-1956 was as follows: "34 (1). If- (a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under Section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, (b) ................... He may in cases falling under Clause (a) at any time within eight years ........ of the end of that year, serve on the assessee, ............. a notice containing all or any of the requirements which may he included in a notice under Sub-section (2) of Section 22 and may proceed to assess or re-assess such income, profits or gains or re-compute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that subsection".
(3.) This section was amended by Section 18 of the Finance Act No. XVIII of 1956 dated 27-4-1956. Under Section 38 thereof the amendment was to come into force from 1-4-1956. Section 34 as amended now stands as follows: "34 (1). If- (a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under Section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate or have been made the subject of excessive relief under the Act or excessive loss or depreciation allowance has been computed, ........... (b) .......... He may in cases falling under Clause (a) at any time ........... serve on the assessee .......... a notice containing all or any of the requirements which may he included in a notice under Sub-section (2) of Section 22 and may proceed to assess or re-assess such income, profits or gains or re-compute the loss or depreciation allowance; and the provisions of this Act shall so far as may be, apply accordingly as if the notice were a notice issued under that sub-section: Provided that the Income-tax Officer shall not issue a notice under Clause (a) of Sub-section (1)- (i) for any year prior to the year ending on the 31st day of March 1941; (ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains chargeable to income-tax which have escaped assessment or have been under-assessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the loss or depreciation allowance which is computed in excess amount to or are likely to amount to one lakh of rupees or more, in the aggregate either for that year, or for that year or any other year or years after which or after each of which eight years have elapsed not being a year or years ending before the 31st day of March, 1951. (iii) For any year, unless he has recorded his reasons for doing so, and, in no case falling under Clause (ii), unless the Central Board of Revenue, and, fn any other case, the Commissioner, is satisfied on such reasons recorded that it is a fit case for the issue of such notice. Provided further that the income-tax officer shall not issue a notice under this sub-section for any year, after the expiry of two years from that year, if the person on whom the assessment or reassessment is to be made in pursuance of the notice is a person deemed to be the agent of a non-resident person under Section 43. Provided further that the tax shall be chargeable at the rate at which it would have been charged had the income, profits or gains not escaped assessment or full assessment as the case may be.";