KURBANHUSSEIN IBRAHIMJI MITHIBORWALA Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS reference arises out of a notice served on the assessee under S. 34 of the Indian IT Act, 1922. The relevant assessment year was 1949 50 and the previous year for the purposes of assessment was S. Y. 2004, ending with November 1, 1948. Long prior to the issue of the notice under S. 34, assessment for the year 1949 50 had been completed under S. 23 of the Indian IT Act, 1922 (hereinafter referred to as the Act); and thereafter on February 28, 1958, notice under S. 34 of the Act was issued upon the assessee. The notice proceeded as follows:

(2.) THUS , it is clear that by this notice issued under S. 34 of the Act, the assessee was called upon to file his return for the asst. year 1948 49, and not for the asst. year 1949 50. Along with this notice under S. 34, a notice under S. 22(2) and S. 38 of the Act was also served upon the assessee. In the notice under S. 22(2) it was mentioned that the notice was in respect of income tax year 1949 50, i. e, for the asst. year 1949 50.

(3.) IN this letter of November 19, 1958, the assessee contended that the notice under S. 34 was clearly time barred. The contention was urged before the ITO that the notice under S. 34 was bad as it was time barred so far as the asst. year 1948 49 was concerned; the ITO, however, completed the assessment for the asst. year 1949 50. There was an appeal to the AAC and before him also it was urged that the notice under S. 34 was invalid and was time barred. The AAC held that the notice under S. 34 was invalid as on the face of it the notice under S. 34 was for the asst. year 1948 49 and was invalid for the asst. year 1949 50 and as the invalidity was no waived by the assessee, the assessment made on the basis of the said notice was illegal and bad in law. He, therefore, set aside the assessment order and annulled the assessment. Against the decision of the AAC, the Department appealed to the Tribunal and the Tribunal up held the contention of the Department and came to the conclusion that the conclusion of the AAC was wrong and the Tribunal restored the appeal to the file of the AAC for disposal according to law. Thereafter, under S. 66(2) of the Act, the following question has been referred to this High Court by the Tribunal :