The judgment of the court was delivered by
HEGDE J.--There are two sets of appeals in this case both
arising from the same judgment. The first set of appeals came to be filed under
the following circumstances:
Civil Appeals Nos. 2157 to 2160 of 1968 were brought to
this court on the strength of certificates issued by the High Court of Patna.
The High Court while granting those certificates did not give any reason in
support of them. That being so, those certificates cannot be considered as
having been given according to law. Hence the appeals brought on the strength of
those certificates must be held to be non-maintainable. It is under those
circumstances the assessee-appellant applied to this court to grant special
leave against the judgment of the High Court. We granted the special leave asked
for. On the basis of the special leave granted by this court Civil Appeals Nos.
1304 to 1307 of 1971 have been filed.
The assessee is a members' club incorporated under the
Indian Companies Act. We are concerned with its assessment for the assessment
years 1956-57, 1957-58, 1958-59, and 1959-60 the corresponding accounting years
being the calendar years 1955, 1956, 1957 and 1958.
In response to a notice issued by the Income-tax Officer
under section 22(2) of the Indian Income-tax Act, 1922--to be hereinafter
referred to as "the Act" the assessee filed "Nil" returns
for all the four years. It claimed that it was not liable to pay income-tax as
it was a members' club. Before the Income-tax Officer the balance-sheets and
profit and loss accounts of the assessee for the relevant accounting years were
produced. After perusing those records, the Income-tax Officer came to the
conclusion that the assessee was not liable to pay any tax in respect of the
amounts realised by it from its members. Some time thereafter the Income-tax
Officer issued notices to the assessee under section 34(1)(b). In response to
those notices the assessee again filed "Nil" returns but the
Income-tax Officer did not accept those returns. He assessed the assessee for
the assessment years 1956-57, 1957-58, 1958-59 and 1959-60 on Rs. 7,526, Rs.
3,521, Rs. 5,313 and Rs. 6,881 respectively. He came to the conclusion that the
amounts received from the members of the club as guests charges must be
considered as the income of the assessee and that the same is liable to be
taxed.
Aggrieved by the orders of the Income-tax Officer, the
assessee took up the matters in appeal to the Appellate Assistant Commissioner.
The Appellate Assistant Commissioner affirmed the orders of the Income-tax
Officer. A further appeal was taken by the assessee to the Income-tax Appellate
Tribunal. The Tribunal upheld the contentions of the assessee and came to the
conclusion that the notices issued under section 34(1)(b) were incompetent
notices as the Income-tax Officer cannot be said to have received any
information after he made the assessments in question.
At the instance of the department the Tribunal referred to
the High Court, under section 66(1) of the Act, one question relating to the
assessment year 1956-57 and two questions relating to the assessment years
1957-58, 1958-59 and 1959-60. In respect of the assessment year 1956-57, the
question referred was :
" Whether, on the facts and circumstances of these
cases, the Tribunal erred in holding that the provisions of section 34(1)(b)
were not properly invoked and the re-assessment proceedings for the assessment
year 1956-57 were invalid. "
In respect of the remaining assessment years, the
questions referred are:
" (1) Whether, on the facts and circumstances of
these cases, the Tribunal was justified in holding that the re-assessments for
the years 1957-58, 1958-59 and 1959-60 under section 34 were invalid on the
ground that the Income-tax Officer had passed no orders of assessment on the
original returns ? and
(2) Whether, on the facts and circumstances of these
cases, the Tribunal erred in holding that the provisions of section 34 were not
properly invoked and the re-assessment proceedings for the assessment years
1957-58, 1958-59 and 1959-60 were invalid ? "
The High Court answered all those questions in favour of
the department. The learned counsel for the assessee did not challenge the
correctness of the answer given by the High Court in respect of question No. 1,
relating to the assessment years 1957-58, 1958-59 and 1959-60. He submitted that
that question is concluded by the decision of this court in Commissioner of
Income-tax v. Bidhu Bhusan Sarkar. In view of that submission, we do not propose
to go into that question.
Now, coming to the question referred in respect of the
assessment year 1956-57 and the second question referred in respect of the
subsequent years, the Income-tax Officer has not placed any material before the
Tribunal to show that he received any fresh information either on questions of
facts or on questions of law subsequent to the date he passed the original
assessment orders. This court has repeatedly ruled that the information referred
to in section 34(1)(b) must be what the Income-tax Officer receives after he
makes the original order of assessment. It must come to his knowledge subsequent
to the assessment sought to be reopened. In these cases it is submitted that all
the facts were placed before the Income-tax Officer when he passed the original
orders of assessment. The fact that the club had received certain amounts as
guests charges from its members had been placed before the Income-tax Officer.
It is not the case of the Income-tax Officer that he did not come to know all
the relevant facts when he made the original orders of assessment. It is also
not his case that at the time he made those orders he was not aware of the true
legal position. It was for the Income-tax Officer to show that he had received
some information subsequent to his passing the original orders of assessment. No
such material was placed before the Tribunal. That being so, the Tribunal, in
our opinion, was right in holding that the Income-tax Officer was incompetent to
initiate proceedings under section 34(1)(b). The High Court has given no reason
to come to the conclusion that there was any subsequent information on the basis
of which the Income-tax Officer could have reassessed the assessee under section
34(1)(b).
For the reasons mentioned above, we allow Civil Appeals
Nos. 1304 to 1307 of 1971 to the extent mentioned above, discharge the answer
given in respect of the question relating to the assessment year 1956-57 as well
as the answer given to the second question relating to the subsequent years and
answer those questions in favour of the assessee. The answer given by the High
Court in respect of the first question relating to the assessment years 1957-58,
1958-59 and 1959-60 stands. The assessee is entitled to its costs in these
appeals in this court. Hearing fee one set.
Now, coming to Civil Appeals Nos. 2157 to 2160 of 1968,
they are dismissed as not being maintainable. In these appeals, there will be no
order as to costs.
Appeals by special leave allowed in part.
Appeals by certificate dismissed.
