Bhandari, J - (1.) THESE four Writ petitions arise under the following circum-stances - One Shri Mohanlal Sanghi died in the year 1951. The Income-tax Officer, 'a' Ward, Jodhpur issued seven notices on Shri Roopnaryan Shah, who is petitioner in Writ Petition No. 248 of 1962, calling upon him to file the returns for the total income of the petitioner for the assessment years 1940-41, 1941-42, 1942-43, 1943-44, 1944-45, 1945-46 and 1946-47 under sec. 34 of the Indian Income-tax Act. Similar notices were also issued to Anil Kumar, minor, son of Shri Roopnarain Shah, who is petitioner in Writ Petition No. 249 of 1962, to Shrimati Ayodhya Kumari, wife of Shri Roopnarain Shah and daughter of Shri Mohanlal, who is petitioner in Writ Petition No. 250 of 1962, and to Shrimati Hulas Devi, widow of Shri Mohanlal Sanghi, who is petitioner in Writ Petition No. 251 of 1962. THESE notices are dated 28th March, 1962 and in the notices the various petitioners were described as legal heirs of late Shri Mohanlal Sanghi. The notices were issued on the ground that the said Income Tax Officer, had reason to believe that the income of these persons had escaped assessment for the various years referred to hereinbefore. It is also mentioned in the notice that they were issued after necessary satisfaction of the Central Board of Revenue. The Writ petitions are opposed by the Income Tax Officer who is the only respondent in these Writ petitions.
(2.) THE contentions raised in all these Writ petitions are the same and it will be sufficient if we examine the contentions in one Writ Petition. We take up Writ Petition No. 248 of 1962 filed by Shri Roop Narain Shah. It is contended in this Writ Petition that the time limit for issuing a notice under sec. 34 (1-A) in respect of the years for which the notices have been issued was the 31st of March, 1956 as laid down in the second proviso to sec. 34 (1-A) and as such no notice could be issued to the petitioner under sec. 34 (1-A ). THE contention of the Department is that notices to the petitioner were issued under sec. 34 (1) (a) and as such notices could be issued at any time without any time limit. There are two other contentions urged in the petition which may also be noticed. The first is that the notices were issued to the petitioner to submit the return of his personal income and his total world income and not that of Shri Mohanlal Sanghi and that notices under sec. 22 of the Act were never issued by any Income Tax Officer in India for the assessment years 1940-41 to 1946-47 calling upon the residents of Indian States of Rajputana to file the returns of their income to any officer appointed under the Act, and as such the provisions of sec. 34 (l) (a) could not be applied. We do not find any force in these two contentions urged on behalf of the petitioner. Notices were issued to the petitioner as legal representatives of Shri Mohanlal Sanghi and it may be taken that it was the Income of Shri Mohan Lal Sanghi which is sought to be assessed and not the personal income of the petitioner. Similarly, there is no force in the other contention for it was the duty of Shri Mohan Lal Sanghi to have submitted the returns if under the law he was required to do so. The main point, therefore, which remains to be decided is whether any notice could have been issued to the petitioner after the 31st of March 1956. At the outset we may observe that we do not find any force in the contention urged on behalf of the petitioner that the notices were issued to him under section 34 (1-A ). Notices mention that they were issued under sec. 34. It is urged that because the notices mention that the Income Tax Officer had reason to believe that the income assessable to income tax had escaped assessment they should be deemed to have been issued under sec. 34 (1-A ). But sec. 34 (1) (a) is as much applicable to a case where the income has escaped assessment and it is open to the Department to contend that they were issued not under sec. 34 (1-A) but under sec. 34 (l) (a ). Sec. 34 (1) mentions four categories of cases in which action under that section may be taken. These are, in which, income, profits or gains have (1) escaped assessment, or (2) have been under-assessed, or (3) assessed at too low a rate, or (4) have been made the subject of excessive relief under the Act or excessive loss or depreciation allowance has been computed. Now all these things are mentioned in the notices, though (2), (3) and (4) have been struck off. We do not agree with the contention raised on behalf of the petitioner that as the notices after striking out the other items referred to any escaped assessment, they must necessarily be deemed to have been issued under sec. 34 (1-A ). It is not necessary for us to see whether the expression 'escaped assessment in sec. 34 (1-A) includes the cases in which the income, profits or gains chargeable to income tax 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. Under the Income Tax Act, 1961, the only expression used is 'escaped assessment' and by way of explanation it is provided that the other cases would be deemed to be included in that expression. This aspect of the matter need not detain us as in the present case the contention of the Department is that the income of Shri Mohanlal Sanghi was not at all assessed previously and thus escaped assessment. The notices that were issued to the petitioner are such as attract the applicability of both Secs. 54 (l) (a) and 34 (1 A) but while a notice under Sec. 34 (1) (a) can be issued at any time, a notice under Sec. 34 (1a) could have been issued up to the 31st of March 1956 as mentioned in the second proviso to that sub-section. The question, therefore, is whether this second proviso will also govern Sec. 34 (1) (a ). It is necessary to examine the Legislative history of Sec. 34 to resolve this controversy. Before the amendment of the Indian Income Tax Act, 1922 by the Indian Income Tax Act, 1954, Sec. 34 (1) stood, as follows: - "34. (l)-If- (a) the Income-tax Officer has reason to believe that by reason of omission or failure on the part of an assessee to make a return of his income under sec. 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 underassessed, 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, or (b) notwithstanding there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income profits or gains chargeable to income-tax have escaped assessment for any year, or have been underassessed or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or that excessive loss or depreciation allowance has been computed, he may in cases falling under clause (a) at any time within eight years and in cases falling under clause (b) at any time within four years of the end of that year, serve on the assessee, or if the assessee is a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of sec. 22 and may proceed to assess or re-assess such income, profits or gains or recompute the loss or deprecia-tion 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 - (i) the Income-tax Officer shall not issue a notice under this sub-section, unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons recorded that it is a fit case for the issue of such notice : (ii) the tax shall be chargeable at the rate at which it would have been charged had the income, profits or gains not escaped assessment as the case may be ; and (iii) where the assessment made or to be made is an assessment or to be made on a person deemed to be the agent of a non-resident person under sec 43, this sub-section shall have effect as if for the period of eight years and four years a period of one year was substituted. Explanation - Production before the Income Tax Officer of account books or other evidence from which material facts could with due diligence have been discovered by the Income-tax Officer will not necessarily amount to disclosure within the meaning of this section. Their Lordships of the Supreme Court in Surajmal Mohta & Co. Vs. A. V. Vishvanathan Sastri & Co. (l) declared the provisions of Taxation on Income (Investigation Commission) Act, 1947 ultra vires the Constitution, and this led the Parliament to enact the Indian Income Tax Amendment. Act, 1954 (Act No. 33 of 1954) so that the persons who had made huge profits during the war period and had escaped assessment may be called upon to pay income-tax. The Parliament in its wisdom considered that action even against such persons should be taken by issuing notices only up to the 31st of March 1956 and thereafter no notice should be issued. The Indian Income Tax Amendment Act, 1954 introduced four new sub-sections to sec. 34 and they are (1-A) to (1-D ). Sub-sec. (1-A) is important and it runs, as follows : - " (1-A) If in the case of any assessee, the Income-tax Officer has reason to believe - (i) that income, profits or gains chargeable to income-tax have escaped assessment for any year in respect of which the relevant previous year falls wholly or partly within the period beginning on the 1st day of September, 1939, and ending on the 31st day of March 1946; and (ii) that the income profits or gains which have so escaped assessment for any such year or years amount, or are likely to amount, to one lakh of rupees or more ; he may, notwithstanding that the period of eight years or, as the case may be, four years specified in sub-sec. (1) has expired in respect thereof, serve on the assessee, or if the assessee is a company, on the principal officer thereof, a notice containing all or any of the requirements which maybe included in a notice under sub-sec. (2) of sec. 22, and may proceed to assess or reassess the income, profits or gains of the assessee for all or any of the years referred to in clause (i) and and thereupon the provisions of this Act (excepting those contained in clause (i) and (iii) of the proviso to sub-sec. (1), and in sub secs. (2) and (3) of this section shall, so far as may be, apply accordingly : Provided that the Income-tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so, the Central Board of Revenue is satisfied on such reasons recorded that it is fit case for the issue of such notice; Provided further that no such notice shall be issued after the 31st day of March, 1956; Then came the amendment by Finance Act, 1956 (No. 18 of 1956 ). The words 'within eight years' in sub-sec. (l) (a) were omitted and the proviso of this sub-section was substituted by a new proviso which runs, as follows: - "provided that the Income Tax Officer shall not issue a notice under clause (a) of sub-sec. (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 at too low a rate or have been made the subject of excessive relief under this Act, or the loss or depreciation allowance which has been 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 ana 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, 1941; (iii) for any year, unless he has recorded his reasons for doing so, and, in any case falling under clause (ii) unless the Central Board of Revenue and in any other case, the Commis sioner 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 re-assessment is to be made in pursuance of a notice is a person deemed to be the agent of a non-resident person under sec. 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 as the case may be. " The effect of this amendment was that though the notice under sec. 34 (1) (a) could be issued at any time yet the proviso provided certain over-riding conditions, one of which was that no notice could be issued for any year prior to the year ending on the 31st of March, 1941. Sub-sec. (1a) was allowed to remain as it was. It was not considered necessary to disturb the second proviso to sub-sec. (1a) which laid down that no notice under that sub-section could be issued after the 31st of March, 1956. There arose then the question whether a notice under clause (a) of sub-sec. (1) could be issued even when at the time of issue of notice the period of 8 years specified in sub-sec. (1) before its amendment by the Finance Act, 1956 had expired in respect of the year to which the notice related. Sub-sec. 4 was introduced by the Indian Income Tax Amendment Act No. 1 of 1959. In the statement of objects and reasons of the Income Tax Amendment Bill, it was stated that the object of introducing sub-sec. 4 was - "to make it clear that sec. 34, as amended by sec. 18 of the Finance Act, 1956, applied to all escaped incomes relating to any year commencing from the year ending on 31st of March 1941. " Sub-sec. 4 runs, as follows: - "a notice under clause (a) of sub-sec. (1) may be issued at any time notwithstanding that at the time of the issue of the notice the period of eight years specified in that sub-section before its amendment by clause (a) of sec. 18 of the Finance Act, 1956 (Act No. 18 of 1956) has expired in respect of the year to which the notice relates. " It cannot be denied that the introduction of sub-sec. (4) left no room for the argument that if at the time when the notice under sub-sec. (l) (a) is issued the period of 8 years expired, as provided in clause (a) of sub-sec. (1) as it stood before the amendment, the assessee should be held to have acquired immunity from further assessment and. no notice could be issued to him. In a sense it was made clear beyond any doubt that the amendment of 1956 whereby the words 'at any time' had been omitted operated retrospectively. This flows directly from the language of sub-sec. 4 itself, and there is no ambiguity left on this point. It is not necessary in order to support this interpretation to look to the statement of objects and reasons given above. If it is considered, it also supports that interpretation. The Calcutta High Court in Bellanand and another vs. S. Banarsi Debi (2) has held that the object of enacting sub-sec. 4 was not only to save notice which was issued under sec. 34 (l) (a) as it stood before the amendment, but also notices which were issued subsequently to the amendment of 1956. We are in respectful agreement with the view taken in that case. What is contended by the petitioner is that in spite of the introduction of sub-sec. 4, sub-sec. (1a) with its two provisos was kept intact, the second proviso laying down that for the period mentioned in sub-sec. (1a) notice could be issued only up to the 31st of March 1956 and not thereafter, and as such, it must be held that this proviso continues to remain operative when the period for which the notice is issued is covered by sub-sec. (1a ). Reliance is placed on the Full Bench case of the Punjab High Court of M/s. Shahzada & Sons & Co. vs. Central Board of Revenue (3 ). In that case a notice under sec. 34 dated 25. 7. 1958 was issued in respect of the income of the assessment year 1945-46. It was held that such a notice could not be issued. The ratio decidendi of that case is given in the following observations?-- "the Legislature seems apparently to be conscious of the provisions of sec 34 (l) (a)and the proviso to it, but has nevertheless made a special provision in the form of sub-sec. (1a) added in 1954. For the special cases so provided by the new provision an outside limit for issuing notices has also been fixed from which it is obvious that the Parliament desired the Tax authorities to act more promptly in the cases covered by the new provision. Now considering the language and scope of the two sub-sections in question before us, sub-sec. (1a) would prima facie appear to be an exception to the cases covered by sub-see. (1) (a), and if this be the correct view, then the notice in question cannot but be held to fall under sub-sec. (la ). " It may be pointed out that in the Punjab case there is no discussion with respect to sub-sec. 4 and it may be for the reason that notice in that case was issued before that sub-section was introduced. The case is therefore distinguishable on this point. We agree that at the time when sub-sec. (1 A) was placed on the statute book in 1954 that provision could be treated as a special provision. It was enacted to meet a particular situation. At that time as the law stood, the income, profits and gains which had escaped assessment of the period beginning on the 1st of September 1939 and ending on the 31st of March 1946 could not be assessed in view of 8 year rule as laid down in sub-sec. (l) (a) and a special provision had to be made for assessing the same but later on amendment was made in 1956 by which the words 'within eight years' in the main section were omitted and proviso to that section was altered so as to make the eight year rule applicable only under certain circumstances. Then in 1959, sub-sec. 4 was introduced leaving no room for doubt that the amendment of 1956 so far as the eight year rule was concerned was retrospective in operation. Now all these amendments are to the effect that notice under sec. 34 (1) (a) could be issued at any time for any period after the 1st of April 1941. Notices for assessment can be issued for the period beginning from the 1st of April 1941 and ending on the 31st of March 1946 both under sec. (l) (a) and sub-sec. (1a ). Sub.-sec. (1-A) could have been altered so as to avoid this overlapping but it was kept intact without any amendment. The contention is that the proviso to sub-sec. (1a) which lays down that notice could be issued only up to the 31st of March 1956 under sub-sec. (la) should be given effect to in such cases, otherwise there will be inconsistency between both the sub-sections. It is contended that the rule of harmonious construction requires that the proviso must be given full effect. It is also pointed out that had this not been the intention of the Legislature sub-sec. (1a) would not have been retained in the present form. This argument no doubt has its own force. On the one hand there is the consideration that sub-sec. (1a) was retained in its present form with its second proviso. On the other hand, there is the consideration that the Parliament took pains to enact sub-sec. 4 to make it clear that the amendment of 1956 operated retrospectively and that notices under sec. 34 (1) (a) could be issued at any time subject to the condition that no notice could be issued for the period anterior to the 31st of March 1941. Maxwell in his Law of Interpretation of Statutes, 11th, Edition (1962) (by Roy Wilson, Q. C. , and Brian Galpin), p. 160/161 has stated, as follows - "if the co-existence of two sets of provisions would be repealed would be destructive of the object for which the later was passed, the earlier by the later. " It may be mentioned that sub-sec. 4 is the last word of the Parliament on the subject and this expression of the will of the Parliament must prevail unless there are insuperable difficulties. We do not find any such insuperable difficulties in this case. The retention of the sub-sec. (1 A) may be justified as cases in which notice issued under sub-sec. (1a) were pending. The Parliament, therefore, may have thought it proper to retain provision of the sub-sec. (1a) making clear by enacting sub-sec. 4 that the second proviso ceased to be operative. With great respect, we are unable to take the view taken in the Full Bench case of the Punjab High Court that after the amendment of 1956, sub-sec. (1a) remained a special provision of such a character as would over-ride the effect of sub-sec. (l) (a) as amended. At least this view cannot be taken after the introduction of sub-sec. 4 of sec. 34. The retention of sub-sec. (1a) in the present form with its second proviso may be justified on the ground that sub-sec. 1 (a) embraced even the cases falling under sub-sec. 1 (b) and for such cases notice could not be issued after 31st day of March, 1956. The Calcutta High Court in Brindaban Chandra Basak vs. Income Tax Officer (4) has taken the view that notice under sub-sec. 34 (1) (a) could be issued in the year 1960 in respect of the assessment year 1942-43 even though the amount involved was less than one lakh of rupees and that such a notice was not bad. Without examining the correctness of this view, it can at least be safely said that if the amount involved is more than one lakh of rupees, notice can certainly be issued under sec. 34 (1) (a) at any time. Another argument that may be taken notice of is that a fiscal provision must be construed in favour of the subject. This is undoubtedly a true rule of interpretation of a fiscal statute imposing a tax. But for construing a provision of law meant for collection of tax imposed by another provision of law such a compelling view may not be taken. In our opinion, sec. 34 is meant for collection of income-tax which has escaped assessment. As a result of the aforesaid discussion, the notices to the petitioner Shri Roop Narain Shah and for that matter to all the other petitioners in the other writ petitions cannot be said to be contrary to law. All the four writ petitions are therefore dismissed with costs. . ;