{"id":167889,"date":"1998-02-17T00:00:00","date_gmt":"1998-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hungerford-investment-trust-ltd-vs-income-tax-officers-ors-on-17-february-1998"},"modified":"2016-04-09T20:49:46","modified_gmt":"2016-04-09T15:19:46","slug":"hungerford-investment-trust-ltd-vs-income-tax-officers-ors-on-17-february-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hungerford-investment-trust-ltd-vs-income-tax-officers-ors-on-17-february-1998","title":{"rendered":"Hungerford Investment Trust Ltd vs Income Tax. Officers & Ors on 17 February, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hungerford Investment Trust Ltd vs Income Tax. Officers & Ors on 17 February, 1998<\/div>\n
Author: M S Manohar.<\/div>\n
Bench: Sujata V. Manohar, D.P. Wadhwa<\/div>\n
           PETITIONER:\nHUNGERFORD INVESTMENT TRUST LTD.\n\n\tVs.\n\nRESPONDENT:\nINCOME TAX. OFFICERS & ORS.\n\nDATE OF JUDGMENT:\t17\/02\/1998\n\nBENCH:\nSUJATA V. MANOHAR, D.P. WADHWA\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t       THE 17TH DAY OF FEBRUARY, 1998
\nPresent:\n<\/p>\n
\t      Hon’ble Mrs. Justice Sujata V.Manohar
\n\t      Hon’ble Mr. Justice  D.P. Wadhwa
\nMr. Shanti  Bhushan, Sr,  Advocate and mr. Prashant Bhushan,
\nAdvocate with him for the appellant.\n<\/p>\n
Mr. K.N.  Shukla, Sr. Advocate and Mr. B.K. Prasad, Advocate
\nwith him for the respondents.\n<\/p>\n
\t\t      J U D G M E N T
\n     The following Judgment of the Court was delivered:
\nMrs. Sujata V. Manohar. J.\n<\/p>\n
     The appellant,  M\/s. Hungerford  Investment Trust\tLtd.
\nwas, at\t all material  times, a\t non-resident company having
\nits registered\toffice at  Singapore. The  appellant company
\nowned 100%  share in  M\/s. Turner  Morrison and Company Ltd.
\nwhich was  a comp[any  incorporated in\tIndia.\tThe  present
\nappeals are concerned with assessment years 1949-50, 1950-51
\nand 1951-52.\n<\/p>\n
     An order under Section 23A of the Income-tax Act, 1922,
\nbefore its  amendment in  1955 was  passed by the Income-tax
\nOfficer in the case of M\/s. Turner Morrison and Company Ltd.
\nas a  result of\t which\tthe  undistributed  portion  of\t the
\nassessable income  of M\/s.  Turner Morrison and Company Ltd.
\nwas deemed  to have  been distributed as dividends among its
\nshareholders for assessment years 1949-50, 1950-51 and 1951-\n<\/p>\n
52. The\t dividend deemed  to have  been so  received by\t the
\nappellant-company as  shareholder for  the assessment  years
\n1949-50, 1950-51  and 1951-52  was sough  to be subjected to
\nincome-tax by the Income-tax Officer under Section 34 of the
\nIncome-tax Act,\t 1922. In  the past  an assessment  had been
\nmade on\t M\/s. Turner Morrison and Company Ltd. was deemed to
\nhave been  distributed as  dividends among  its shareholders
\nfor assessment\tyears  1949-50,\t 1950-51  and  1951-52.\t The
\ndividend deemed\t to have  been so received by the appellant-
\ncompany as  shareholder for  the assessment  years  1949-50,
\n1950-51 and 1951-52 was sought to be subjected to income-tax
\nby the Income-tax Officer under Section 34 of the Income-tax
\nAct, 1922.  In the  past an assessment had been made on M\/s.
\nTurner\tMorrison   and\tCompany\t  Ltd.\tas  agents  for\t the
\nappellant-company on  a total  income which  was returned as
\nnil. In\t vies of  the above  order under  Section  23A,\t the
\nIncome-tax Officer  sought approval  of the  Commissioner of
\nIncome-tax under  Section 34 to tax the appellant-company as
\nan assessee  in respect of assessment years 1949-50, 1950-51
\nand 1951-52.\n<\/p>\n
     After obtaining approval of the Commissioner of Income-
\ntax under Section 34, the Income-tax Officer issued a notice
\nfor the\t assessment year 1949-50 to M\/s. Turner Morrison and
\nCompany\t Ltd.\tas  agents   of\t the   appellant-company  on
\n24.3.1954. A return was filed pursuant to the notice by M\/s.
\nTuner Morrison\tand Company Ltd. as agents of the appellant-
\ncompany for  the assessment years 1949-50. The status of the
\ncompany in  the return was described as non-resident and the
\nincome was  the dividend deemed to be received under Section
\n23A by\tthe appellant-company  from M\/s. Turner Morrison and
\nCompany Ltd.  On 29.10.1954  the Income-Tax  Officer made an
\nassessment and issued a demand notice on M\/s. Tuner Morrison
\nand Company  Ltd. as  agents of\t the appellant\tnon-resident
\ncompany.\n<\/p>\n
     For the  assessment  years\t 1950-51  and  1951-52,\t the
\nIncome-tax  Officer,   after  obtaining\t approval  from\t the
\nCommissioner of\t Income-tax to\tissue a notice under Section
\n34 on  the appellant-company as the assessee, issued notices
\ndated 11.2.1955\t on  the  appellant-company.  On  16.2.1955,
\nreturns were  filed by\tthe appellant-company. The residence
\nwas shown as at Singapore. The returns were accompanied by a
\ncovering letter\t from M\/s.  Turner Morrison and Company Ltd.
\nAs agents  o behalf  of the appellant-company. On 25.2.1955,
\nthe Income-Tax\tOfficer made  an  assessment  and  issued  a
\ndemand for  assessment years  1950-51 and  1951-52  on\tM\/s.
\nTurner Morrison and Company Ltd. as agents of the appellant-
\ncompany.\n<\/p>\n
     Thereupon\tM\/S.   Turner  Morrison\t  and  Company\tLtd.
\nchallenged the\tassessment orders  so  made  for  the  three
\nassessment   years    before   the    Appellate\t   Assistant
\nCommissioner. The  Appellant Assistant\tCommissioner, by his
\norder dated 29.11.1980, held that the Income-tax Officer had
\nvalidly initiated  proceedings for  assessment years 1950-51
\nand 1951-52  on the appellant-company. However, he failed to
\nmake an\t assessment on\tthe appellant-company  directly\t and
\nmade an\t assessment on\tM\/s. Tuner Morrison and Company Ltd.
\nas agents  of the appellant. He held that such an assessment
\non  the\t agent\tof  a  non-resident  company  was  bared  by
\nlimitation in  the present  case under the second proviso to
\nSection 34(1)  of the  Income-tax Act, 1922. He directed the
\nIncome-Tax  Officer  to\t make  a  fresh\t assessment  on\t the
\nappellant-company on  the basis of the valid returns already
\nfurnished by the appellant-company. In respect of assessment
\nyear 1949-50, the Appellate Assistant Commissioner held that
\nthe notice  had been issued within the period of limitation.
\nHowever, the  proceedings should have been taken against the
\nappellant-company  directly.  He,  therefore,  directed\t the
\nIncome-tax  Officer  to\t make  a  fresh\t assessment  on\t the
\nappellant-company from the stage of notice.\n<\/p>\n
     Accordingly, on  26th of  October, 1961,  three notices
\nwere issued  on\t the  appellant-company\t by  the  Income-tax
\nOffice for the three assessment years. The appellant-company
\nchallenged these  notice by  filling a\twrit petition before
\nthe Calcutta  High Court  being writ Petition No. 1\/1962.  A
\nlearned Single Judge of the Calcutta High Court by his order
\ndated 31.1.1972\t dismissed the\twrit petition,\tholding that
\nthe assessment\tproceedings  against  the  appellant-company
\nwere validly  commenced by  notices  dated  26.10.1361.\t The
\nappeal of  the appellant-company  before a Division Bench of
\nthe Calcutta  High Court  was also dismissed by its judgment
\nand order  dated 13.8.1982.  Hence, the present appeals have
\nbeen filed before us.\n<\/p>\n
     The  appellant-company   contends\tthat  the  Appellate
\nAssistant  Commissioner\t  had  no   jurisdiction   to\tgive
\ndirections under  Section 31  to the  Income-Tax Officer  to
\nmake the  assessments on  the appellant-company.  Therefore,
\nthe notices  which have\t been issued  against the appellant-
\ncompany on  26.10.1961 are  beyond the\tperiod prescribed by
\nSection 34  of the  Income-tax Act,  1922. According  to the
\nappellant-company,  since   the\t direction   given  by\t the
\nAppellate Assistant  Commissioner is  not covered by Section
\n31, the\t second\t provision  to\tSection\t 34(3)\tlifting\t the
\nembargo of limitation in such cases is not attracted.\n<\/p>\n
     The Appellate Assistant Commissioner by his order dated
\n29.11.1960 gave the following directions:\n<\/p>\n
     “In view  of  the\tvarious\t reasons
\n     discussed above  the assessment for
\n     1949-50 made  by the  I.T.O. on the
\n     Resident\tCompany\t   M\/s.\t  Turner
\n     Morrison and Company Ltd. as agents
\n     of the  Non-Resident  Company  M\/s.
\n     Hungerford Investment Trust Ltd. in
\n     order  to\t the  tax   the\t  deemed
\n     dividend under  Section 23A  is set
\n     aside and the I.T.O. is directed to
\n     make a  direct  assessment\t on  the
\n     Non-Resident   Company    …..and,
\n     therefore, the  I.T.O. is direct to
\n     make the  assessment direct  on the
\n     Non-resident  Company  to\ttax  the
\n     deemed dividend  under Section 23A.
\n     In connection  with the  assessment
\n     for 1950-51 and  1951-52……. the
\n     notices  under   Section  34   were
\n     validly issued  taking the assessee
\n     as\t Non-resident  Company\tdirectly
\n     and the returns of income were also
\n     submitted showing\tthe assessee  as
\n     Non-resident      Company\t    and,
\n     therefore, the  proceedings are set
\n     aside from\t the stage  of issue  of
\n     notice under  Section 23(2) and the
\n     I.T.O.  is\t directed  to  make  the
\n     assessment\t on   the   Non-Resident
\n     Company\tafter\t giving\t   fresh
\n     opportunity to  the assessee  under
\n     Section 23(2).”<\/p><\/blockquote>\n
     Pursuant to these directions the Income-tax Officer has
\nissued two notices dated 26.10.1961 in respect of assessment
\nyears 1950-51  and 1951-52  on the  appellant-company  under
\nSection 23(2)  of the  Income-tax Act,\t1922. The Income-Tax
\nOfficer has  also issued  a notice  dated 26.10.1961  on the
\nappellant-company under Section 34 of the Income-tax Act for
\nthe assessment year 1949-50.\n<\/p>\n
     Under Section  34(1)(a) of the Income-tax Act, 1922, if
\nthe Income-tax\tOfficer has reason to believe that by reason
\nof the\tomission or  failure on\t the part  of an assessee to
\nmake a return of his income under Section 22 for any year or
\nto disclose fully and truly all material facts necessary for
\nhis assessment\tfor that  year, income chargeable to income-
\ntax has\t escaped assessment  for that  years,  or  has\tbeen
\nunder-assessed etc,  as\t set  out  therein,  the  Income-tax
\nOfficer can  serve on  the assessee  a notice and proceed to
\nassess or  re-assess such  income. Similarly,  under Section
\n34(1)(b), notwithstanding  that there has ben no omission or
\nfailure as  mentioned in  Clause (a)  on  the  part  of\t the
\nassessee, if  the Income-tax  Officer has, in consequence of
\ninformation in his possession, reason to believe that income
\nchargeable to  income-tax has  escaped\tassessment  for\t any
\nyear, or  has  been  under-assessed  he\t can  serve  on\t the
\nassessee a  notice and\tproceed to  assess or re-assess such
\nincome as  specified in\t that section. The period prescribed
\nat the\tmaterial time  for issuing notice was eight years in
\nthe cases  falling under Section 34(1((a) and four years for
\ncases falling  under Section 34(1)(b). The second proviso to
\nSection 34(1),\tat the\tmaterial  time,\t provided  that\t the
\nexpiry of two years from the relevant assessment year if the
\nperson on whom the assessment or re-assessment is to be made
\nin pursuance  of the  notice is\t a person  deemed to  be the
\nagent of a non-resident person under Section 43.\n<\/p>\n
     The second\t proviso to  Section 34(3),  however, at the
\nmaterial time provided as follows:\n<\/p>\n
     “Provided further that nothing
\n     contained in  this Section limiting
\n     the time  within which  any  action
\n     may  be   taken   or   any\t  order,
\n     assessment or  reassessment may  be
\n     made, shall apply to a reassessment
\n     made under\t Section  27  or  to  an
\n     assessment or  reassessment made on
\n     the  assessee   or\t any  person  in
\n     consequence of or to give effect to
\n     any finding  or direction contained
\n     in\t an   order  under  Section  31,
\n     Section 33,  Section  33A,\t Section
\n     33B, Section 66 or Section 66A.”<\/p><\/blockquote>\n
\t   [Underlining ours]
\n     This is  how the  second proviso to Section 34(3) stood
\nafter its  amendment in\t 1953 by  the Income-tax (Amendment)
\nAct of\t1953 with  effect  from\t 1st  of  April,  1952.\t The
\nappellant-company  contends   that  this   proviso  has\t  no
\napplication in\tthe present case because the direction given
\nby the\tAppellate Assistant Commissioner under Section 31 is
\na  direction   to  assess   a  stranger\t to  the  assessment
\nproceedings against  M\/s. Turner  Morrison and\tCompany Ltd.
\nand hence it is not covered by the second proviso to Section
\n34(3).\n<\/p>\n
     Since the\timpugned notices  are dated  26.10.1961, and
\npertain to  assessment years 1949-50 to 1951-52, it is clear
\nthat but  for this  proviso, the notices would be beyond the
\nperiod prescribed  under Section  34 of\t the Income-tax Act,
\n1922. The  second proviso  to Section 34(3) lifts the bar of
\nlimitation when,  inter alia,  an assessment or reassessment
\nis made on an assessee or any person in consequence of or to
\ngive effect  to any  finding or\t direction contained  in  an
\norder under Section 31.\n<\/p>\n
     In the present case the original assessment orders were
\nmade on\t M\/s. Turner  Morrison and Company Ltd. as agents of
\nthe appellant-company.\tThe order of the Appellate Assistant
\nCommissioner giving  directions\t to  assess  the  appellant-
\ncompany was  passed in\tthe appeals  of M\/s. Turner Morrison
\nand Company  Ltd. against  the orders  of assessment for the
\nsaid three  assessment years.  Can the\tappellant-company on
\nwhom the  notices have been issued pursuant to the Appellant
\nAssistant Commissioner’s  order and directions f 29.11.1960,
\ncome within the scope of phrase “the assessee or any person”
\nin respect  of whom any direction can be given under Section
\n31?\n<\/p>\n
     The scope\tof this\t second proviso to Section 34(3) was
\nexamined by  a Constitution  Bench of this Court in the case
\nof S.C. Prashar & Anr. v. Vasantsen Dwarkadas & Ors.<\/a> [(1963)
\n49 ITR\t1]. This Court, examining the second proviso to sub-
\nsection (3)  of Section\t 34 which  came into effect from 1st
\nApril, 1952,  said that\t it patently  introduced an  unequal
\ntreatment in  respect of  some out  of\tthe  same  class  of
\npersons. Those\twhose liability to pay tax was discovered by
\none method  would be  proceeded against\t at any\t time and no
\nlimitation would  apply in  their case\tand in\tthe case  of
\nothers the  limitation\tlaid  down  by\tsub-section  (1)  of
\nSection 34 would apply. Referring to the distinction made by
\nthe High  Court in  that case on a somewhat narrower ground,
\nthis Court  observed that so far as assesses were concerned,
\nthere might  be a  rational ground  of\tdistinction  because
\nappeal proceedings  etc might  take  a\tlong  time  and\t the
\nassessee being\ta party\t to the appeal could not complain of
\nsuch delay.  Therefore, an  assessee did not occupy the same
\nposition as  strangers. This Court, therefore, held that the
\nproviso, in so far as it affected strangers, must be held to
\nbe ultra vires as violating Article 14 of the Constitution.\n<\/p>\n
     The same  Bench delivered\tanother judgment on the same
\nday in\tthe Commissioner  of Income-tax,  Bihar &  Orissa v.
\nSardar Lakhmir Singh<\/a> [(1963) 49 ITR 70] in which it affirmed
\nits finding  in S.C.  Prashar’s case (supra). In the case of
\nS.C. Prashar  (supra), the  assessee before the Tribunal was
\nVAsantsen Dwarkadas as representing his deceased father. The
\nTribunal in  appeal held  that the income in question should
\nbe  deleted  from  Dwarkadas’s\tincome.\t If  the  Income-tax
\nOfficer can  include the  same in  the income of the firm of
\nPurshottam Laxmidas (of which Dwarkadas was a partner) he is
\nat liberty  to do  so. He  can then  apportion the income of
\nPurshottam Laxmidas amongst the partners thereof as provided
\nin Section  23(50  of  the  Act.  Thereupon  the  Income-tax
\nOfficer served\ta notice  under Section\t 34 on\tthe firm  of
\nPurshottam Laxmidas.  This  Court  held\t that  the  firm  of
\nPurshottam  Laxmidas   was  not\t before\t the  Tribunal\tand,
\ntherefore, the firm was no batter than a stranger who was in
\nsome way associated with the assessee. Therefore, the second
\nproviso to  Section 3493)  would have  no application to the
\nfirm and the notice under Section 34 which was issued on the
\nfirm of Purshottam Laxmidas was barred by limitation.\n<\/p>\n
     In the second case of Sardar Lakhmir Singh (supra), the
\nassessee and his father had filed separate returns of income
\nin their  individual capacity.\tBut the\t Income-tax  Officer
\namalgamated their  income and  assessed the  total income as
\nthe income  of the  Hindu Undivided  Family. He did not make
\nany protective assessment with regard to the separate income
\nshown in the return of the assessee. The Appellate Assistant
\nCommissioner set aside the assessment of the Hindu Undivided
\nFamily.\t Thereafter,   the  Income-tax\t Officer   made\t  an
\nassessment on  the assessee  in individual  capacity on\t the
\nbasis of  the original return filed by him. This was held to
\nbe barred by limitation.\n<\/p>\n
     In the subsequent case, however, of Income-tax Officer,
\nA-Ward, Sitapur\t v. Murlidhar  Bhagwan Das  [52 ITR  335], a
\nConstitution Bench  of this Court considered the ratio\tlaid
\ndown in\t S.C. Prashar’s\t case (supra).\tThis Court  observed
\n(p.346) that  the expression  “any  person”  in\t the  second
\nproviso to  Section 34(3) in its widest connotation may take
\nin any\tperson, whether\t connected or not with the assessee,
\nwhose income  for any  year has escaped assessment; but this
\nconstruction cannot  be accepted. For the said expression is
\nnecessarily circumscribed by the scope of the subject-matter
\nof the\tappeal or  revision, as\t the case may be. That is to
\nsay, that  person must\tbe one\twho would  be liable  to  be
\nassessed for  the whole\t or a  part of\tthe income that went
\ninto the  assessment of\t the year  under appeal or revision.
\n“If so\tConstrued, we  must turn  to Section 31 to ascertain
\nwho is that person other than the appealing assessee who can
\nbe liable  to  be  assessed  for  the  income  of  the\tsaid
\nassessment year.  A combined  reading of  Section 30(1)\t and
\nSection 31(3)  of the  Act indicated the cases where persons
\nother than  the appealing  assessee  might  be\taffected  by
\norders passed by the Appellate Commissioner. Modification or
\nsetting aside  of assessment  made on  a firm,\tjoint  Hindu
\nfamily, association  of persons,  for a\t particular year may
\naffect the  assessment for  the said  year on  a partner  or
\npartners of  the  firm,\t member\t or  members  of  the  Hindu
\nundivided family  or the  individual, as the case may be. In
\nsuch cases  though the\tlatter are  not eo nomine parties to
\nthe appeal, their assessments depend upon the assessments on
\nthe former.  The said instances are only illustrative. It is
\nnot necessary  to  pursue  the\tmatter\tfurther.  We  would,
\ntherefore, hold\t that the  expression “any  person”  in\t the
\nsetting in  which it  appears must  be confined\t to a person
\nintimately  connected\tin  the\t aforesaid  sense  with\t the
\nassessments of the year under appeal.”\n<\/p>\n
     Therefore, if  the\t person\t against  whom\tnotices\t are
\nissued under Section 34 pursuant to a direction given by the
\nAppellate Assistant  Commissioner under\t Section  31,  is  a
\nperson intimately  connected with the original assessee, the
\nperiod of  limitation will  not apply  to  a  notice  issued
\nagainst him  under Section  34. He  would be  covered by the
\nphrase “assessee  or any  other\t person”  under\t the  second
\nproviso to Section 34(3).\n<\/p>\n
     The principle  laid down in the above case of Murlidhar
\nBhagwan Das (supra) was applied by this Court in the case of
\nCommissioner of\t Income-tax, Patiala  V. Ambala\t Flour Mills<\/a>
\n[(1970) 78 ITR 256]. In that case an individual Debi Prasad,
\nhad submitted  the returns  in various\tcapacities  and\t had
\nappealed against  the order of assessment. The income earned
\nby the\tassessee  was  assessed\t to  tax  as  income  of  an
\nassociation of\tpersons of  which, on  the findings  of\t the
\nIncome-tax  Officer,  Debi  Prasad,  the  Tribunal  did\t not
\nexercise  its\tpower  qua  a  stranger\t to  the  assessment
\nproceedings. Therefore,\t this Court  held that the period of
\nlimitation would  not be  applied. The\tAppellate  Assistant
\nCommissioner was competent to set aside the assessment of an
\nassociation of\tpersons and to direct the Income-tax Officer
\nto assess the members individually.\n<\/p>\n
     In the  case of  Estate of\t Late  Rangalal\t Jajodia  v.
\nCommissioner of\t Income-tax, Madras<\/a> [79 ITR 505], the return
\nhad been  filed by  one Rangalal Jajodia who died before the
\nassessment order  was made.  The assessment order showed the
\nname of\t the assessee  as the  estate of  late Shri Rangalal
\nJajodia by  legal heirs\t and representatives  — these being
\nthe son,  the (second)\twife and  her children.\t No  notice,
\nhowever, was  served on\t the wife.  Therefore, in  appeal, a
\nnecessary direction was given that notice should be given to
\nher  and  after\t hearing  her  assessment  should  be  made.
\nInterpreting the  second proviso to Section 34(3) this Court
\nsaid that  she was  no a stranger to the assessment, she was
\nnot merely intimately connected with the assessment. She was
\nin fact\t an  assessee.\tTherefore,  the\t second\t proviso  to
\nSection 34(3) would apply.\n<\/p>\n
     In the  case of  Commissioner of  Income-tax,  U.P.  v.
\nMohd. Shakoor Mohd.Bashir<\/a> [89 ITR 57], one Zahur Bux who was
\nthe sole  owner of  the business  gifted his business to his
\ntwo sons  Mohd. Shakoor\t and Mohd.  Bashir. Zahur  Bux\tdied
\nthereafter. The\t two sons  submitted their returns of income
\nin respect of the business. The Income-tax Officer, however,
\nrejected their returns and proceeded to assess all the heirs
\nof Zahur  Bux as  an association  of persons. In appeal, the
\nAppellate Assistant  Commissioner held\tthat  the  assessee,
\nnamely, the  association of  persons consisting\t of all\t the
\nheirs of  Zahur Bux was not liable to be taxed in respect of
\nthe business.  He held\tthat the business had been gifted to
\ntwo sons,  Mohd. Shakoor  and Mohd  Bashir. He set aside the
\norder of  the Income-tax  Officer but directed him to assess
\nthe  income  from  various  sources  in\t the  hands  of\t the
\nrespective  persons  to\t whom  they  arose.  The  Income-tax
\nOfficer thereafter  issued notices to the two brothers. This
\nCourt held that the directions which were given by Appellate
\nAssistant Commissioner\tdid not\t fall within  the  scope  of
\nsecond\tproviso\t  to  Section\t34(30  and,  therefore,\t the
\nsubsequent notices  which  were\t issued\t by  the  Income-tax
\nOfficer were  barred by limitation. The brothers to whom the
\nbusiness was gifted were strangers to assessment proceedings
\nagainst the  association of  persons consisting\t of heirs of
\nZahur Bux.\n<\/p>\n
     In the  present case  we have  to consider\t whether the
\nappellant-company  is\ta   stranger   to   the\t  assessment
\nproceedings against M\/s. Turner Morrison and Company Ltd. as
\nlaid down in the case of S.C. PRASHAR (supra) or whether the
\nappellant-company can  be said\tto be  intimately  connected
\nwith the  assessee M\/s.\t Turner Morrison and Company Ltd. as
\nlaid down in the case of Muralidhar Bhagwandas (supra).\n<\/p>\n
     The notices  for the assessment years 1950-51 and 1951-
\n52 were\t sent  to  the\tappellant-company  itself.  For\t the
\nassessment year\t 1949-50, the  notice had  been sent to M\/s.
\nTurner Morrison and Company Ltd. as agents of the appellant-
\ncompany. Under\tSection 42  of\tthe  Income-tax\t Act,  1922,
\nincome arising\twhether directly  or indirectly\t through  or
\nfrom any  business in  the taxable territories or through or
\nfrom  any   asset  or\tsource\tof  income  in\tthe  taxable
\nterritories, shall  be\tdeemed\tto  be\tincome\taccruing  or
\narising within the taxable territories; and where the person
\nentitled to  the income\t is  not  resident  in\tthe  taxable
\nterritories, shall be chargeable to income-tax either in his
\nname or\t in the\t name of  his agent  and in the latter case,
\nsuch agent  shall be  deemed to\t be for\t all the purposes of
\nthis Act  the assessee\tin respect  of such income. Thus, in
\nview of Section 42, in the present case, there was an option
\nto tax either the appellant-company or its agent M\/s. Turner
\nMorrison  and  Company\tLtd.  Therefore,  when\tthe  initial
\nnotices under Section 34 were sent by the Income-tax Officer
\nin 1954 and 1955, what was sought to be taxed was the income
\narising\t in   taxable  territories   of\t  the\tnon-resident
\nappellant-company. For\tthe  assessment\t years\t1950-51\t and
\n1951-52, the  notice was addressed to the appellant company.
\nBut even in respect of the assessment year 1949-50, what was
\nsought to  be taxed  was the  appellant’s income  or  deemed
\nincome arising\tin India.  For the  assessment years 1950-51
\nand 1951-52,  the returns  were\t also  filed  by  appellant-
\ncompany as an assessee. The status of the assessee was shown
\nas non-resident.  It was  on the basis of these returns that
\nthe Income-tax\tOfficer proceeded to make an assessment. For
\nthe assessment\tyears 1950-51  and 1951-52, however, he made
\nan assessment  in the  name  of\t M\/s.  Turner  Morrison\t and
\nCompany Ltd.  as agents\t of the\t appellant-company. For\t the
\nassessment year\t 1949-50 the return was filed by M\/s. Turner
\nMorrison and  Company  Ltd.  as\t agents\t of  the  appellant-
\ncompany. The  status of the assessee was shown in the return
\nas non-resident\t and the  income which\twas shown was deemed
\ndividend accruing to the appellant-company as provided under
\nSection 23A. For the assessment year 1949-50, the assessment
\nwas made  on M\/s. Turner Morrison and Company Ltd. as agents
\nof the\tappellant-company. Whether  we look upon M\/s. Turner
\nMorrison and  Company Ltd.  as an  independent\tassessee  or
\notherwise, the\tassessment was\tclearly in  respect  of\t the
\nincome of the appellant-company deemed to arise by virtue of
\nSection 23A  in India  for that\t assessment year. Therefore,
\nthe  appellant-company\t was  directly\tconcerned  with\t the
\nassessment proceedings\tand  the  appeal  arising  in  those
\nassessment  proceedings\t  before  the\tAppellate  Assistant
\nCommissioner. The Appellate Assistant Commissioner directed,
\nfor reasons  set out  in his  order,  that  the\t assessments
\nshould be  made on  the appellant-company  itself and not on
\nits  agent.   This  direction  cannot  be  considered  as  a
\ndirection to  assess a\tstranger. In  fact as  the  original
\nassessment  proceedings\t  pertain  to\tthe  income  of\t the
\nappellant-company, in any vies of the matter, the appellant-
\ncompany must  be considered as intimately connected with the
\nassessment proceedings\tin  which  the\tAppellate  Assistant
\nCommissioner gave  the impugned\t directions. The  appellant-
\ncompany\t is,   therefore,  covered   by\t the  expression  on
\n“assessee or  any person”  in the  second proviso to Section
\n34(3).\n<\/p>\n
     In the case of Muralidhar Bhagwandas (supra) this Court
\ngave illustrations  of persons\twho might  be considered  as
\nintimately connected  with the\tassessee  in  the  light  of
\nSection 30(1)  and Section  31 of  the Income-tax  Act. This
\nCourt referred to assessment of a partnership firm which may
\naffect the  income of  individual partners or the assessment
\nof an  association of persons which may affect the income of
\nthe individual\tor the\tassessment of  a joint\tHindu family
\nwhich may  affect the  assessment of  members of  the  Hindu
\njoint  family.\t It,  however,\tmade  it  clear\t that  these
\ninstances were only illustrative and not exhaustive.\n<\/p>\n
     The  appellant-company,  however,\tcontends  that\t“any
\nperson” in the said proviso would cover only such persons as
\nwere referred  to by the Court as illustrations in Murlidhar
\nBhagwandas (supra)  because they  are also  referred  to  in
\nSection 31(4).\tWe do  not see any merit in this contention.
\nUnder Section 31(3), in disposing of an appeal the Appellate
\nAssistant  Commissioner\t may,  inter  alia,  set  aside\t the
\nassessments and\t “direct the  Income-tax Officer  to take  a
\nfresh assessment  after making\tsuch further  inquity as the
\nIncome-tax Officer  thinks fit\tor the\tAppellate  Assistant
\nCommissioner may  direct and  the Income-tax  Officer  shall
\nthereupon  proceed   to\t make\tsuch  fresh  assessment\t and
\ndetermine where\t necessary the\tamount of tax payable on the
\nbasis of  such fresh  assessment.” Under  sub-section (4) of
\nSection 31, where as the result of an appeal any changes are
\nmade in\t the assessment\t of a firm or association of persons
\nor a  new assessment  of a firm or association of persons is
\nordered to be made, the Appellate Assistant Commissioner may
\nauthorities the\t Income-tax Officer to amend accordingly any
\nassessment made\t on any partner of the firm or any member of
\nthe association.  This provision  under Section 31(4) cannot
\nbe read\t as limiting  the scope of the words “any person” in
\nthe second  proviso to\tSection 34(3)  as referring  only to
\nthose persons  who are\tcovered by  Section 31,\t sub-section
\n(4). The words are wide enough to cover all directions under
\nSection 31  including those  relating to the assessment of a
\nperson intimately  connected with  the assessee in the sense
\nas laid\t down by  this\tCourt  in  the\tcase  of  Muralidhar
\nBhagwandas (supra).  Whether the person is so connected will
\ndepend on  the facts   of each case. The illustrations given
\nin the case of Murlidhar Bhagwandas (supra) do not limit the
\nwords “any  person”, but  are only  illustrative.  The\tonly
\nreason why  the words  “any person” are read down to exclude
\ntotal strangers, is to prevent infringement of Article 14 of
\nthe Constitution.\n<\/p>\n
     The directions in the present case, therefore, given by
\nthe  Appellate\t Assistant  Commissioner  by  his  order  of
\n29.11.1960 are directions property given under Section 31 of
\nthe Income-tax\tAct, 1922  and the notices, therefore, which
\nare issued  on 25.10.1981 by the Income-tax Officer pursuant
\nto the\tdirections so given, cannot be considered as notices
\non total strangers barred by limitation. The High Court was,
\ntherefore, right in dismissing the writ petition.\n<\/p>\n
     The appeals are accordingly dismissed with costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hungerford Investment Trust Ltd vs Income Tax. Officers & Ors on 17 February, 1998 Author: M S Manohar. Bench: Sujata V. Manohar, D.P. Wadhwa PETITIONER: HUNGERFORD INVESTMENT TRUST LTD. Vs. RESPONDENT: INCOME TAX. OFFICERS & ORS. DATE OF JUDGMENT: 17\/02\/1998 BENCH: SUJATA V. MANOHAR, D.P. WADHWA ACT: HEADNOTE: JUDGMENT: THE 17TH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-167889","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHungerford Investment Trust Ltd vs Income Tax. 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