{"id":226075,"date":"1974-10-16T00:00:00","date_gmt":"1974-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/income-tax-officer-income-vs-nawab-mir-barkat-ali-khan-bahadur-on-16-october-1974"},"modified":"2018-10-23T10:36:55","modified_gmt":"2018-10-23T05:06:55","slug":"income-tax-officer-income-vs-nawab-mir-barkat-ali-khan-bahadur-on-16-october-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/income-tax-officer-income-vs-nawab-mir-barkat-ali-khan-bahadur-on-16-october-1974","title":{"rendered":"Income Tax Officer, Income … vs Nawab Mir Barkat Ali Khan Bahadur on 16 October, 1974"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Income Tax Officer, Income … vs Nawab Mir Barkat Ali Khan Bahadur on 16 October, 1974<\/div>\n
Equivalent citations: 1975 AIR 703, \t\t 1975 SCR (2) 464<\/div>\n
Author: A Gupta<\/div>\n
Bench: Gupta, A.C.<\/div>\n
           PETITIONER:\nINCOME\tTAX  OFFICER, INCOME TAX-CUM-WEALTH TAX\t CIRCLE\t II,\n\n\tVs.\n\nRESPONDENT:\nNAWAB MIR BARKAT ALI KHAN BAHADUR\n\nDATE OF JUDGMENT16\/10\/1974\n\nBENCH:\nGUPTA, A.C.\nBENCH:\nGUPTA, A.C.\nKHANNA, HANS RAJ\n\nCITATION:\n 1975 AIR  703\t\t  1975 SCR  (2) 464\n 1975 SCC  (4) 370\n CITATOR INFO :\n F\t    1991 SC 331\t (6,13)\n\n\nACT:\nIncome\ttax Act, 1961, s. 147--Scope of High  Court's  power\ninterference under Art. 226.\n\n\n\nHEADNOTE:\nIn  1950, the respondent had executed three trust deeds\t for\nthe benefit of three ladies who were described as his wives,\nand  himself, as the father of their minor children.   After\nthe returns in respect of the assessment year 1955-56, 1956-\n57,  1957-58 and 1958-59 were filed by the  respondent,\t the\nIncome-tax Officer, who had the three trust deeds before him\ncalled\tupon  the respondent for information  regarding\t his\nrelationship   to  those  three\t ladies\t as  well   as\t his\nrelationship  to a fourth lady.\t A statement was  filed,  on\nbehalf\tof  the respondent, before the\tIncome-tax  Officer,\nwherein\t it  was stated that only the fourth  lady  was\t his\nlegally\t wedded\t wife,\tthat the  other\t three\twere  merely\nreferred  to as the wives, and that their children were\t not\nthe  legitimate children of the respondent.  The  Income-tax\nOfficer, in assessing the total income of the respondent did\nnot  include, under s. 16(3) of the 1922-Act, the income  of\nthose  three ladies and their minor children arising out  of\nthe trust properties.  In fact, he assessed them  separately\nwith respect to their income from the trust properties.\t  In\n1964  the Income-tax Officer issued notices under s. 148  of\nthe 1961-Act seeking to reopen the assessments under s.\t 147\non the ground that there were two other trust deeds of 1957,\nwhich  were not produced before the I. T. 0. in\t which\talso\ntwo  of\t the ladies were acknowledged as the  wives  of\t the\nrespondent and their children as his children and that their\nmarriage should be presumed because of the  acknowledgement.\nThe  respondent\t there-upon challenged the validity  of\t the\nproceedings and the High Court allowed his petition.\nDismissing the appeal to this Court,\nHELD  : (1) Section 147(a) provides that if  the  Income-tax\nOfficer has reason to believe that by reason of the omission\nor failure on the part of the assessee to disclose fully and\ntruly  all material facts necessary for his  assessment\t for\nany  year, income chargeable to tax has\t escaped  assessment\nfor that year, he may assess or reassess such income for the\nassessment  year  concerned.  The fact that the\t ladies\t and\ntheir  children had been described in the 1957-documents  as\nwives  and  children  of  the  respondent  would  have\tbeen\nmaterial  if  the description were any thing  new  that\t the\nIncome-tax Officer happened to discover for the first  time.\nBut the 1950,deeds also contained the same description.\t The\nnon-production\tof  the 1957-documents at the  time  of\t the\noriginal  assessment  cannot therefore be regarded  as\tnon-\ndisclosure of any material fact necessary for the assessment\nof the respondent for the relevant assessment years.  Having\nsecond\tthoughts on the same material does not\twarrant\t the\ninitiation of a proceeding under s. 147. [467G-H; 468B; D-E]\n(2)  The   law\thas  not  changed  or  since  the   original\nassessments  were  made and it was open\t to  the  Income-tax\nOfficer\t to have made the presumption that the\tladies\twere\nthe  wives  at\tthe time when he made  the  assessment.\t  He\ncannot avail of s. 147 to correct his mistake. [468F-G]\n(3)  The expression 'reason to believe' occurring in s.\t 147\nof the 1961-Act or the corresponding s. 34 of the  1922-Act,\ndoes  not mean a purely subjective satisfaction on the\tpart\nof the Income-tax Officer.  The reasons for the belief\tmust\nhave  a\t rational  connection or  relevant  bearing  to\t the\nformation  of the belief.  Therefore, the High Court,  under\nArt.  226, has power to set aside a notice under s.  147  of\nthe  1961  Act or s. 34 of the 1922-Act,  if  the  condition\nprecedent  to the exercise of the .jurisdiction under  those\nsections did not exist. [469C-D]\n465\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1179-1782
\nof 1970.\n<\/p>\n
From  the Judgment & Order dated the 7th March, 1969 of\t the
\nAndhra Pradesh High Court in Writ Petition Nos. 1042-1045 of
\n1964.\n<\/p>\n
S.   C.\t Manchanda, B. B. Ahuja and R. N. Sachthey, for\t the
\nAppellant (In all the Appeals).\n<\/p>\n
S.   V.\t Gupte, Anwarulla Pasha, J. B. Dadachanji, A.  Subba
\nRao and Anjali K.  Varma,  for the Respondents (In  all\t the
\nAppeals).\n<\/p>\n
M.   N. Phadke, A. V. Rangam, Gopal Nair and A.\t Subhashini,
\nfor the Interveners (In all the Appeals).\n<\/p>\n
The Judgment of the Court was delivered by
\nGUPTA,\tJ.  These  are four appeals by\tcertificate  from  a
\ncommon\tJudgment  of  the High Court of\t Andhra\t Pradesh  at
\nHyderabad  by which the High Court directed  the  appellant,
\nIncome\tTax  Officer, Income Tax-cum-Wealth Tax\t Circle\t 11,
\nHyderabad to refrain from proceeding against the  respondent
\nunder  sec.  147  (a)  of the Income  Tax  Act,\t 1961.\t The
\nappellant  had\tserved on the respondent,  Nawab  Sahib\t Mir
\nOsman  Alikhan\tBahadur, H. E. H., the Nizam  of  Hyderabad,
\nnotices\t under sec. 148 of the income Tax Act, 1961  stating
\nthat he had reasons to believe that income of the respondent
\nchargeable to tax for the assessment years 1955-56, 1956-57,
\n1957-58\t and  1958-59  had  escaped  assessment\t within\t the
\nmeaning of sec. 147 of the Act and proposing to reassess the
\nincome\tfor  the  said\tassessment  years.   The  respondent
\nchallenged  the validity of the proceedings under  sec.\t 147
\nsought to be initiated by filing four writ petitions in\t the
\nHigh  Court of Andhra Pradesh at Hyderabad.  The High  Court
\nby the impugned Judgment allowed all the four petitions\t and
\nprevented  the\tIncome Tax Officer from\t proceeding  further
\nunder  sec.  147  of the Income Tax  Act,  1961.   In  these
\nappeals the appellant questions the correctness of the\tHigh
\nCourt’s decision.\n<\/p>\n
The  material facts are briefly these.\tAssessments for\t the
\naforesaid  four years were completed respectively  on  March
\n18,  1958, March 19, 1958, July 20, 1958 and March 28,\t1961
\nunder  the  income Tax Act of 1922.  After  the\t returns  in
\nrespect of the said years were filed, the Income Tax Officer
\ncalled\tupon the respondent to state his  relationship\twith
\nfour  ladies by putting three queries to him.\tThe  queries
\nwere as follows:\n<\/p>\n
\t      “(a)  The\t rites and ceremonies  attendant  on
\n\t      legal  marriages, according to Muslim law\t and
\n\t      how they were observed in the case of each  of
\n\t      the  four\t ladies\t viz.,\tDulhan\tPasha  Begum
\n\t      Saheba, Mazharunnisa Begumsaheba, Laila  Begum
\n\t      Saheba and jani Begum Saheba.\n<\/p><\/blockquote>\n
\t      (b)   What  legal\t status is accorded  to\t the
\n\t      children\tof Mazharunnisa Begum  Saheb,  Laila
\n\t      Begum Saheba and Jani Begum Saheba, vis-a-vis,
\n\t      the  children of the late Dulhan Pasha  Be-gum
\n\t      Saheba?\n<\/p><\/blockquote>\n
\t      466<\/span><\/p>\n
\t      (c)   Any other factors from the point of view
\n\t      of the religion which distinguished the status
\n\t      of  late\tDulhan Pasha Begum Saheba  from\t the
\n\t      other three ladies.”\n<\/p><\/blockquote>\n
It appears that on May 1, 1950, August 6, 1950 and  December
\n29,  1950  the respondent had executed\tthree  trust  deeds,
\ndescribed respectively as Family Trust, Miscellaneous  Trust
\nand   Family  Pocket  Money  Trust,  for  the\tbenefit\t  of
\nMazharunnissa  Begum, Laila Begum, Jani Begum and the  minor
\nchildren  of the last two. in the aforesaid trust deeds\t the
\nthree  ladies were described as wives of the respondent\t who
\nwas also referred to as the father of their minor  children.
\nIn  one\t of these documents, viz., the family  Pocket  Money
\nTrust Deed, the description of Laila Begum and Jani Begum as
\nwives  was preceded by the expression “ladies of  position”.
\nUnder  sec.  16\t (3)  of the income  Tax  Act  of  1922,  in
\ncomputing  the\ttotal  income  of  any\tindividual  for\t the
\npurposes  of  assessment, the income of the  wife  or  minor
\nchild of the assessee arising from assets transferred by the
\nhusband\t to the wife or the minor child otherwise  than\t for
\nadequate  consideration\t was to be included.   There  is  no
\ndispute\t that these trust deeds were before the\t Income\t Tax
\nOfficer\t before\t he completed the assessments for  the\tsaid
\nfour years.\n<\/p>\n
On  September  9, 1957 Shri C.\tB.  Taraporewala,  Financial
\nAdviser\t  and  General\tPower  of  Attorney  Agent  of\t the
\nrespondent, filed a statement before the Income Tax  Officer
\nin reply to these queries.  In this reply it was stated that
\nthe  late  Dulhan Pasha Begum Saheba was  the  only  legally
\nwedded\twife  of the respondent, that with the\tother  three
\nladies\tthe  respondent had not gone through  the  essential
\nformalities of a valid marriage under Mohanunedan Law,\tthat
\nthese three ladies who occupied high social position and who
\nwere received in his palace were “ladies of position” and in
\nview  of  the special favours bestowed upon them  they\twere
\nreferred to as wives in the said three trust deeds though in
\nthe strict legal sense the description was incorrect and the
\nchildren  of these ladies were not tile legitimate  children
\nof  the\t respondent and had no legal status as\tsuch.\tThis
\nexplanation  apparently\t satisfied the\tincome\tTax  officer
\nbecause in assessing the total income of the respondent\t for
\nthe  said four years he did not include the income of  these
\nthree  ladies  and their minor children arising out  of\t the
\ntrust\tproperties.    It   is\talso   admitted\t  that\t the
\nbeneficiaries of the trusts were separately assessed on\t the
\nincome\tderived from the trusts along with their  individual
\nincome.\n<\/p>\n
On  March 13, 1964 the notices under sec. 148 of the  Income
\nTax Act, 1961 were issued seeking to reopen the\t assessments
\nunder  sec. 147 of the Act.  After some correspondence\twith
\nthe  income Tax Officer, the authorized\t representatives  of
\nthe  respondent, M\/s.  S. G. Dastgir and Company,  Chartered
\nAccountants,  filed supplemental returns for  the  aforesaid
\nfour years “without prejudice” to the respondent’s right  to
\nquestion  the  valid it of the\tnotices.   The\tsupplemental
\nreturns\t merely affirmed the original returns filed  by\t the
\nrespondent.\n<\/p>\n
By  his\t letter\t dated\tApril 15,  1964\t addressed  to\tM\/s.
\nDastgir\t and  Company,\tthe Income Tax\tofficer\t stated\t the
\nreasons for reopening the
\n467<\/span>
\nassessments under sec. 147(a).\tReferring to two  subsequent
\ntrusts\tnamed  Fern  Hill  and\tRace  View  created  by\t the
\nrespondent   on\t  March\t 21,1957  and\tDecember   5,\t1957
\nrespectively, it was stated that the material facts relating
\nto these two documents were not brought to the notice of the
\nDepartment  in\tthe course of the original  assessment\tpro-
\nceedings.  Fern Hill Trust was created for the benfit of the
\nchildren of Laila Begum and Race View Trust for the  benefit
\nof  Jani Begum and her son Imdad Jah Bahadur.  ‘in the\tFern
\nHill  Trust  Deed Laila Begum was described as wife  of\t the
\nrespondent   and  her  children\t as  the  children  of\t the
\nrespondent  by her.  Similarly in the Race View\t Trust\tDeed
\nJani Begum was described as wife of the respondent and lmdad
\nJah Bahadur as his son by her.\tAccording to the Income\t Tax
\nOfficer\t the  facts  that Laila Begum and  Jani\t Begum\twere
\ndescribed as wives and their children as the children of the
\nrespondent  in\tthe Trust Deeds executed in  1957  indicated
\nthat  “certain\tmaterial facts relevant for  the  assessment
\nyears  were  not  disclosed  to\t the  Department,  that\t the
\nstatement given by the Financial Adviser is. untrue and that
\nthereby\t income chargeable to tax has been under  assessed”.
\nIn  his letter the Income Tax Officer also referred to\tsec.
\n268 of Mulla’s Principles of Mohammedan Law which enumerates
\nthe  circumstances from which marriage will be\tpresumed  in
\nthe  absence of direct proof and stated that the  respondent
\nhaving acknowledged the three ladies as his wives and  their
\nchildren as his children in the Trust Deeds executed in 1950
\nand  1957 all the circumstances mentioned in see.  268\twere
\npresent.   The\tletter\tconcluded  by  saying  that  it\t was
\nestablished  that  the ladies and their\t children  were\t the
\nlegal wives and legitimate children of the respondent.
\nThe  common  counter-affidavit affirmed by  the\t Income\t Tax
\nofficer in answer to the writ petitions was on similar lines
\nto the aforesaid latter.  Admittedly Fern Hill and Race View
\nTrust  Deeds executed in 1957 were not produced\t before\t the
\nIncome Tax officer when he made the original assessments for
\nthe four years in question. in the counter affidavit it\t was
\nalleged\t that  these  two Trust\t Deeds\twere  “material\t and
\nprimary\t facts necessary for completing the  assessments  of
\nthe  petitioner-assessee for the relevant assessment  years”
\nand it was submitted that if the said two documents had been
\ndisclosed  at  the  time of the\t original  assessments,\t the
\nincome\tTax  Officer “would have certainly arrived.  at\t the
\nconclusion”  that he came to in his letter dated  April\t 15,
\n1964.\n<\/p>\n
Clause\t(a)  of Sec. 147 of the Income Tax Act,\t 1961  under
\nwhich the assessments were sought to be reopened, so far  as
\nit is relevant for the present purpose, provides that if the
\nIncome Tax Officer has reason to believe that, by reason  of
\nthe  omission  or  failure on the part\tof  an\tassessee  to
\ndisclose  fully and truly all material facts  necessary\t for
\nhis;  assessment for any year, income chargeable to tax\t has
\nescaped assessment for that year, he may assess or  reassess
\nsuch  income  for the assessment year concerned.   The\tHigh
\ncourt  held.  that the reasons assigned\t for  reopening\t the
\nassessments  did  not fall within the scope of\tomission  or
\nfailure\t on the part of the assessee to disclose  fully\t and
\ntruly  all material facts, that all the material facts\twere
\nbefore the Department
\n15-255 Sup.Cl\/75
\n468<\/span>
\nwhen  it  made the assessments in question  and\t the  trusts
\ncreated\t in  1957 did not “throw a different  light  on\t the
\nmatters already disclosed”.\n<\/p>\n
The question is whether the existence of the two trust deeds
\nexecuted  by  the  respondent in 1957 was  a  material\tfact
\nnecessary  for\this assessment for the\trelevant  assessment
\nyears.\t The fact that the three ladies and  their  children
\nhave  been  described in these two documents  as  wives\t and
\nchildren  of the respondent would have been material if\t the
\ndescription  were anything new that the Income\tTax  Officer
\nhappened  to discover for the first time.  The\tthree  trust
\ndeeds  of 1950 also contained the same description of  these
\nladies\tand  their  children  and  the\tIncome\tTax  Officer
\naccepted  the  statement  made\tby  respondent’s   Financial
\nAdviser\t Shri G. B. Taraporewala seeking to explain why\t the
\nladies had been described as wives therein.  It is true that
\nthe trust deeds of 1957 were not produced at the time of the
\noriginal  assessment  but  we do  not  see  what  difference
\nproduction of these two additional documents could have made
\nwhich  contain the same description of the ladies.   Neither
\nthe   letter  addressed\t to  the   respondent’s\t  authorised
\nrepresentatives,  M\/s.\t S. G. Dastgir and Company,  by\t the
\nIncome\tTax  Officer  on April 15,  1964  nor  the  counter-
\naffidavit filed in the High Court explains this point.\t The
\ndocuments  of  1957  conform to those of  1950\tin  material
\nparticulars;  the trust deeds of 1957 only repeat  what\t the
\ndeeds\tof  1950  had  disclosed.   Non-production  of\t the
\ndocuments  executed  in\t 1957 at the time  of  the  original
\nassessments  cannot therefore be regarded as  non-disclosure
\nof  any\t material fact necessary for the assessment  of\t the
\nrespondent  for\t the relevant assessment  years.   The\tHigh
\nCourt  was right in holding that the Income Tax officer\t had
\nno valid reasons to believe that the respondent had  omitted
\nor failed to disclose fully and truly all material facts and
\nconsequently  had no jurisdiction to reopen the\t assessments
\nfor  the four years in question.  Having second thoughts  on
\nthe  same  material  does not warrant the  initiation  of  a
\nproceeding under sec. 147 of the Income Tax Act, 1961.
\n Mr.  Manchanda, learned counsel for the appellant, took  us
\nthrough several sections of Mulla’s Principles of Mohammedan
\nLaw   including\t  sec.\t268  and  submitted  that   in\t the
\ncircumstances of the case it must be presumed that the three
\nladies were the legally wedded wives of the respondent.\t The
\nlaw has not changed since the original assessments were made
\nand  it\t was  open to the Income Tax Officer  to  make\tthat
\npresumption  at the time.  If he should have but did not  do
\nso  then,  he  cannot  avail of sec.  147  to  correct\tthat
\nmistake.   In  any  event, we are not called  upon  in\tthis
\nproceeding  to record a finding on the question\t whether  in
\nfact the ladies were respondent’s legally wedded wives.\t  We
\nare  concerned only with the question whether the  condition
\nprecedent  to  the exercise of jurisdiction under  sec.\t 147
\nexists in this case; we have found that it does not.
\nMr. Manchanda also contended that the High Court  exercising
\njurisdiction under Art. 226 of the Constitution had no power
\nto  investigate\t whether  on the  material  before  him\t the
\nIncome-Tax  Officer was justified in proceeding\t under\tsec.
\n147  of the Income Tax Act, 1961.  He relied, among  others,
\non the following decisions in support
\n469<\/span>
\nof   his   contention:\tS.  Narayanappa\t  and\tothers\t vs.
\nCommissioner of Income Tax, Bangalore,<\/a> (1) Kantamani Venkata
\nNarayana and Sons vs.  First Additional Income Tax  Officer,
\nRajahmundry,<\/a> (2) Commissioner of Income Tax, Gujarat vs.  A.
\nRaman  & Co.<\/a> (3) and of course, Calcutta Discount  Co.\tLtd.
\nvs.  Income tax Officer, Companies District I Calcutta, (4)
\n  We  do not think that these decisions help him.   In\tthis
\ncase,  the  decision  of  the High Court  is  not  that\t the
\nmaterial  before the Income Tax Officer was insufficient  or
\nthat  he had failed to draw the correct conclusion from\t the
\nmaterial  before him but that no fresh material had come  to
\nlight\tjustifying  reopening  of  the\t assessments.\t The
\nauthorities  to which Mr. Manchanda referred point out\tthat
\nthe expression “reason to believe” occurring in sec. 147  of
\nthe Income Tax Act, 1961 or the corresponding sec. 34 of the
\nAct  of 1922 does not mean a purely subjective\tsatisfaction
\non  the part of the Income Tax Officer, the reasons for\t the
\nbelief must have a rational connection or a relevant bearing
\nto  the\t formation of the belief, and that  the\t High  Court
\nunder Art. 226 of the Constitution has power to set aside  a
\nnotice\tunder sec. 147 of the Act of 1961 or sec. 34 of\t the
\nAct  of 1922 if the condition precedent to the\texercise  of
\njurisdiction under these sections does not exist.
\nIn  the\t result, these appeals fail and are  dismissed\twith
\ncosts.\tOne hearing fee.\n<\/p>\n
An  application\t for intervention in these appeals  made  by
\nthree persons claiming to be sons of the respondent was\t not
\nultimately pressed; no order is therefore called for on this
\napplication.\n<\/p>\n
Appeals dismissed.\n<\/p>\n
(1)  63 I.T.R. 219.\n<\/p>\n
(2)  63 I.T.R. 638.\n<\/p>\n
(3)  67 I.T.R. 11.\n<\/p>\n
(4)  41 I.T.R. 191.\n<\/p>\n
470<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Income Tax Officer, Income … vs Nawab Mir Barkat Ali Khan Bahadur on 16 October, 1974 Equivalent citations: 1975 AIR 703, 1975 SCR (2) 464 Author: A Gupta Bench: Gupta, A.C. PETITIONER: INCOME TAX OFFICER, INCOME TAX-CUM-WEALTH TAX CIRCLE II, Vs. RESPONDENT: NAWAB MIR BARKAT ALI KHAN BAHADUR DATE OF JUDGMENT16\/10\/1974 […]<\/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-226075","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nIncome Tax Officer, Income ... vs Nawab Mir Barkat Ali Khan Bahadur on 16 October, 1974 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/income-tax-officer-income-vs-nawab-mir-barkat-ali-khan-bahadur-on-16-october-1974\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Income Tax Officer, Income ... vs Nawab Mir Barkat Ali Khan Bahadur on 16 October, 1974 - 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