ABDUL SATTAR HAZI AHMED Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS matter comes to us for decision on the statement of the case made by the Tribunal in compliance with the direction of this Court dt. 28th April, 1950, requiring the Tribunal to state the following case for the decision of the Court, viz., "Whether in the circumstances of this case, the assessment made under S. 34 of the IT Act is valid ?" The assessment that is now objected to on behalf, of the applicant before us is the assessment for the year 1942 -43 on the basis of an accepted return submitted by the assessee with reference to a notice issued on 26th Feb., 1947, by the ITO under S. 34 of IT Act.

(2.) ON these facts, it is urged that the fresh assessment made by the ITO in the year 1947 against the applicant was merely the result of the view taken by the appellate authority that on the evidence placed before him, the business belonged not to the applicant as the sole owner, but to a partnership of which the applicant was only a member having a seven -anna share, contrary to what the ITO held on the same evidence. It is contended that the fact of the appellate authority having taken a different view of the evidence from that of the original assessing authority does not constitute "definite information" within the meaning of S. 34 of the Indian IT Act, so as to entitle the original assessing authority to restart assessment against him. For and against this argument, quite a number of cases have been cited by both sides, of which it is sufficient to mention CIT vs. Sir Mahomed Yusuf Ismail (1944) 12 ITR 8 (Bom) : TC51R.1408, Fazal Dhala vs. CIT (1944) 12 ITR 341 (Pat) : TC51R.1353, V. M. Raghavalu Naidu & Sons vs. CIT (1945) 13 ITR 194 (Mad) : TC51R.1353, CIT vs. K. M. S. Lakshmana Iyer (1945) 13 ITR 242 (Mad) : TC51R.1351, Chowdhary Mithoo Missar vs. CIT, V. P. and C.P. (1950) 18 ITR 530 (All) : TC51R.517, L. Shubhkaran Seksaria vs. CIT, U. P. & C. P. (1950) 18 ITR 773 (All) : TC51R.1368 and CIT vs. Janab S. Khadervali Sahib (1951) 20 ITR 208 (Mad).

(3.) I may add that there is no merit in the objection taken by the applicant before us. It was taken for the first time in appeal against the assessment challenged and by the very person who has obtained the benefit of having escaped from assessment on account of the course which the proceedings took with his knowledge and consent.