JANARDHANAN PILLAI M L Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner was finally assessed to income tax by an order of the ITO, Alleppey, dt. 29th Feb., 1952, in respect of the accounting period, 11th Jan., 1947 to 31st Dec., 1947 (asst. year 1124 M.E.). The ITO sketched the history of the case as follows in the assessment order (Exhibit C) :

(2.) SEC . 35(4) of the Travancore IT Act, 1121 (XXIII of 1121) corresponds to S. 25(4) of the Indian IT Act, 1922 (XI of 1922). Sub s. (4) of S. 35 of the Travancore Act reads as follows : (a) "Where the person who was at the commencement of this Act carrying on any business, profession or vocation on which tax was at any time charged under the provisions of the Travancore IT Act (8 of 1096), is succeeded in such capacity by another person the change not being merely a change in the constitution of a partnership, no tax shall be payable by the first mentioned person in respect of the income, profits and gains of the period between the end of the previous year and the date of such succession, and such person may further claim that the income, profits and gains of the previous year shall be deemed to have been the income, profits and gains of the said period. Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said period, and, if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on the basis of such assessment, a refund shall be given of the difference. Provided that sub ss. (3) and (4) shall not apply to super tax". According to S. 35(5) of the Travancore Act (corresponding to S. 25(5) of the Indian Act) :

(3.) THE petitioner's claim is for exemption from tax in respect of the income, profits and gains of the year of succession which it is contended is the year 1947. We propose to assume without deciding that that claim is not barred by the one year rule prescribed by Sub S. (5). Exhibit I is a petition filed by the petitioner before the ITO, Mavelikara, in May, 1951. In that petition he stated as follows :