{"id":241542,"date":"1959-05-15T00:00:00","date_gmt":"1959-05-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maharajadhiraj-sir-kameshwar-vs-the-state-of-bihar-on-15-may-1959"},"modified":"2015-12-27T10:50:27","modified_gmt":"2015-12-27T05:20:27","slug":"maharajadhiraj-sir-kameshwar-vs-the-state-of-bihar-on-15-may-1959","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maharajadhiraj-sir-kameshwar-vs-the-state-of-bihar-on-15-may-1959","title":{"rendered":"Maharajadhiraj Sir Kameshwar … vs The State Of Bihar on 15 May, 1959"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Maharajadhiraj Sir Kameshwar … vs The State Of Bihar on 15 May, 1959<\/div>\n
Equivalent citations: 1959 AIR 1303, \t\t 1960 SCR (1) 332<\/div>\n
Author: Hidayatullah<\/div>\n
Bench: Hidayatullah, M.<\/div>\n
           PETITIONER:\nMAHARAJADHIRAJ SIR KAMESHWAR SINGH\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF BIHAR\n\nDATE OF JUDGMENT:\n15\/05\/1959\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nDAS, SUDHI RANJAN (CJ)\nBHAGWATI, NATWARLAL H.\n\nCITATION:\n 1959 AIR 1303\t\t  1960 SCR  (1) 332\n\n\nACT:\n       Agricultural  lncome-tax-Power  of  Agricultural\t Income-tax\n       Office\t -If  can revise his own order of  exemption--Bihar\n       Agricultural   Income-tax  Act, 1938 (Bihar Vlf Of 1938)\t s.\n       26.\n\n\n\nHEADNOTE:\n       In his return of agricultural income for the assessment year\n       I944-45 the appellant showed a sum of Rs. 2,82,192, which he\n       had  paid  to the Tekari Rai for two  lease-hold\t properties\n       taken  on Zarpeshgi lease, as one of the items of the  total\n       amount of deduction claimed by him as capital receipt.\tThe\n       Agricultural  Income-tax\t Officer  accepted  his\t claim\tand\n       exempted the amount from Payment of agricultural income-tax.\n       The   Assistant\tCommissioner  of  Agricultural\t Income-tax\n       affirmed\t the decision.\tA demand notice was issued and\tthe\n       assessee paid two instalments.  Thereafter, the Agricultural\n       Income-tax Officer served on the assessee a notice under\t S.\n       26  of  the Bihar Agricultural Incometax Act, 1938,  to\tthe\n       effect that income from the said Zarpeshgi lease had escaped\n       assessment and after he appeared, passed a\n       333\n       supplementary  assessment order and assessed Rs.\t 39,5I2-6-o\n       as  tax.\t  The  assessee\t appealed.   The  Commissioner\t of\n       Agricultural  Income-tax\t reversed the said  decision.\tThe\n       Province\t of  Bihar moved the Board of Revenue and  the\ttwo\n       questions  it referred to the High Court under S.  25(1)\t Of\n       the Act were, (1) whether in the facts and circumstances\t of\n       the   case,   the  Agricultural\t Income-tax   Officer\thad\n       jurisdiction to revise his own order under S. 26 of the\tAct\n       and  (2) if so, whether the income from the Zarpeshgi  lease\n       was taxable under the Act.  The High Court answered both the\n       questions  in  favour  of the State of  Bihar.\tHence  this\n       appeal by the assessee by special leave.\n       Held, that under S. 26 of the Bihar Agricultural\t Income-tax\n       Act, 1938, the Agricultural Income-tax Officer had the power\n       to revise his own order and assess an item of income  which,\n       even  though shown in the return, he had earlier omitted\t to\n       tax under a misapprehension that it was not taxable.\n       The use of the words \" any reason \" in S. 26 of the Act made\n       the section wider than S. 34 Of the Indian Income-tax Act by\n       dispensing  with\t the  conditions  which\t circumscribed\tthe\n       section.\n       Kamal  Singh v. Commissioner of Income-tax, Bihar &  Orissa,\n       A.I.R. 1959 S.C. 257, applied.\n       Messrs.\tChatturam Hoyilyam Ltd. v. Commissioner of  Income-<\/a>\n       tax, Bihar and Orissa, [1955] 2 S.C.R. 290, distinguished.\n       Case-law discussed.\n       Since  the appellant had failed to prove his case  that\tthe\n       income  in  question  was  income  from\this   money-lending\n       business\t or that the payment made to the lessor was not\t by\n       way of premium but as a loan, the income from the lease-hold\n       property\t which\twas admittedly agricultural  in\t character,\n       must be held to be liable to tax under the Act, irrespective\n       of the character of the recipient.\n\n\n\nJUDGMENT:\n<\/pre>\n
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 254 of 1954.
\n       Appeal  by special leave from the judgment and  order  dated
\n       February\t 19, 1952, of the Patna High Court in Misc.   Judl.
\n       Case No. 244 of 1949.\n<\/p>\n
       B.   Sen,  S.  K.  Majumdar  and\t I.  N.\t Shrojj,  for\tthe
\n       appellant.\n<\/p>\n
       M.   C.\tSetalvad, Attorney-General for India, B.  K.  Saran
\n       and R. C. Prasad, for the respondent.\n<\/p>\n
       1959.  May 15.  The Judgment of the Court was delivered by
\n       HIDAYATULLAH J.-This appeal, with the special leave of  this
\n       Court, has been filed by Maharajadhiraja
\n       334<\/span>
\n       Sir Kameshwar Singh of Darbhanga (hereinafter referred to as
\n       the  assessee)  against the judgment of the  High  Court\t of
\n       Patna  dated  February  19, 1952, by which  the\tHigh  Court
\n       answered\t in  the affirmative the following:  two  questions
\n       referred\t to  it under s. 25(1) of  the\tBihar  Agricultural
\n       Income-tax Act, 1938:\n<\/p>\n
       (1)  ” Whether in view of the circumstances of the case, and
\n       particularly  the manner in which, after due  consideration,
\n       the  learned  Agricultural Incometax Officer  in\t his  first
\n       judgment\t dated\tthe 5th January, 1946, had  held  that\tthe
\n       assessee\t was not liable to be assessed for the\treceipt\t on
\n       account\tof  the zarpeshgi lease, the  learned  Agricultural
\n       Incometax  Officer has jurisdiction to revise his own  order
\n       under s. 26 of the Act; and
\n       (2)  Whether  if he had the jurisdiction to revise  his\town
\n       order,  under  section 26 of the Act, the  income  from\tthe
\n       zarpeshgi lease of the assessee was taxable under the Act.”
\n       The  facts of the case lie within a very narrow\tcom.  pass.
\n       For  the assessment year 1944-45 which corresponded  to\tthe
\n       year  of\t account  1351 Fasli,  the  assessee  returned\tRs.
\n       37,43,520   as  his  agricultural  income.   He\tclaimed\t  a
\n       deduction  of  Rs.  9,42,137-3-10 1\/2  on  account  of  land
\n       revenue, rent etc., including a sum of Rs. 2,82,192 shown to
\n       have  been paid to the Tekari Raj from which  two  leasehold
\n       properties were taken on zarpeshgi lease by indentures dated
\n       August  15, 1931, and January 31, 1936,\trespectively.\tThe
\n       amount was sought to be deducted as a capital receipt.
\n       The  Agricultural  Income-tax Officer of\t Darbhanga  by\this
\n       order dated December 28, 1945 accepted this contention,\tand
\n       exempted the amount from payment of agricultural income-tax.
\n       He observed:\n<\/p>\n
       ”  Out of Rs. 9,42,137-3-10 1\/2 claimed on account  of  Land
\n       Revenue and rent, Rs. 2,82,192 is shown as payment to Tekari
\n       Raj and then taken towards the realisation of Zarpeshgi Loan
\n       to  self.   I have gone through the bond of  Gaya  Zarpeshgi
\n       Lease.  This payment is allowed to the assessee, as it is  a
\n       capital income according to the terms of the bond.  At the
\n       335<\/span>
\n       same  time, I think, this amount of Rs. 2,82,192\t should\t be
\n       treated as income to Tekari Raj and assessed in Gaya  Circle
\n       along  with other income of Tekari Raj as it is credited\t to
\n       that  Raj  by  the assessee -and then set  off  against\tthe
\n       Zarpeshgi loan advanced to Tekari Raj.”\n<\/p>\n
       The assessment was approved by the Assistant Commissioner of
\n       Agricultural  Income-tax on January 4, 1946, and on the\tday
\n       following,  the Income-tax Officer passed his  formal  order
\n       and issued a demand notice.\n<\/p>\n
       The  assessee  paid two instalments out of  three,  when\t on
\n       March 22, 1946, the Agricultural Income-tax Officer recorded
\n       the following order :-\n<\/p>\n
       ”  It  appears  that  some  agricultural\t income\t from  Gaya
\n       Zarpeshgi  lease which should have been taxed for  the  year
\n       1944-45\t(1351 Fasli) has escaped assessment.  Issue  notice
\n       under section 26 fixing the 20th May 1947.”
\n       After  the  assessee appeared,  a  supplementary\t assessment
\n       order was passed and Rs. 39,512-6-0 were assessed as tax\t on
\n       Rs. 2,52,879.\n<\/p>\n
       In deciding the matter, the Agricultural Income-tax  Officer
\n       gave the following reasons:\n<\/p>\n
       According  to  the  terms of the lease the  assessee  is\t to
\n       remain  in  possession and enjoy the usufruct of\t the  lands
\n       given in lease for a fixed number of years on payment of\t an
\n       annual  thica  rent  of Rs. 1,000 to  the  lessor  and  thus
\n       satisfy himself for the entire amount of consideration money
\n       of  the\tzarpeshgi  lease in question.\tIn  fact,  by  this
\n       zarpeshgi  lease\t the assessee has been given the  grant\t of
\n       lands for a fixed term on a fixed rent.\tWhatever income\t is
\n       derived from these lands during the tenure of this lease, is
\n       the income of the assessee and as such it should be taxed in
\n       the  hands  of  the assessee and not in\tthe  hands  of\tthe
\n       lessor.”\n<\/p>\n
       The  Agricultural Income-tax Officer purported to act  under
\n       s.  26  of  the\tBihar  Agricultural  Income-tax\t Act,  1938
\n       (hereinafter referred to as the Act).\n<\/p>\n
       The  assessee  appealed.\t The Commissioner  of  Agricultural
\n       Income-tax reversed the decision.  He pointed
\n       336<\/span>
\n       out  that the agricultural income from Tekari  Raj  property
\n       was  returned by the assessee but was held to be exempt\tand
\n       thus could not be said’ to have escaped assessment so as\t to
\n       bring  the  case within s. 26 of the Act.  The  Province\t of
\n       Bihar  (as it was then called) ,moved the Board of  Revenue,
\n       Bihar which by a resolution dated February 7, 1948, referred
\n       the two questions to the High Court of Patna.  The Board did
\n       not  express any opinion on the two questions.  In the  High
\n       Court,  both  the questions were answered in favour  of\tthe
\n       State  of  Bihar.   Leave having been refused  by  the  High
\n       Court, the assessee applied for, and obtained special  leave
\n       from this Court.\n<\/p>\n
       Section 26 of the Act, under which the Agricultural  Income-
\n       tax Officer purported to act is substantially the same as s.
\n       34  of  the Indian Income-tax Act, prior to  its\t amendment.
\n       Necessarily, therefore, the rulings on the interpretation of
\n       the  latter  section  were freely cited\tby  the\t contending
\n       parties.\t Section 26 of the Act reads as follows:
\n       ”  If for any reason any agricultural income  chargeable\t to
\n       agricultural  income-tax\t has  escaped  assessment  for\tany
\n       financial year, or has been assessed at too low a rate,\tthe
\n       Agricultural Income-tax Officer may, at any time within\tone
\n       year of the end of that financial year, serve on the  person
\n       liable  to pay agricultural income-tax on such  agricultural
\n       income  or,  in\tthe case of a  company,\t on  the  principal
\n       officer\tthereof,  ” a notice containing all or any  of\tthe
\n       requirements  which  may\t be  included  in  a  notice  under
\n       subsection  (2) of section 17, and may proceed to assess\t or
\n       re-assess such income, and the provisions of this Act shall,
\n       so far as may be, apply accordingly as if the notice were  a
\n       notice issued under that subsection:\n<\/p>\n
       Provided that the tax shall be charged at the rate at  which
\n       it  would have been charged if such income had  not  escaped
\n       assessment or full assessment, as the case may be.  ”
\n       For  facility  of reference, the previous s. 34\tbefore\tthe
\n       amendment in 1948 of the Indian Income-tax Act may  likewise
\n       be quoted here.\tIt read:\n<\/p>\n
       337<\/span><\/p>\n
       If  in  consequence of definite information which  has  come
\n       into  his possession the Income-tax Officer  discovers  that
\n       income,\tprofits\t or  gains chargeable  to  income-tax  have
\n       escaped assessment in any year, or have been under-assessed,
\n       or  have been assessed at too low a rate, or have  been\tthe
\n       subject\tof excessive relief under this Act  the\t Income-tax
\n       Officer\tmay, in any case in which he has reason to  believe
\n       that  the  assessee  has concealed the  particulars  of\this
\n       income  or  deliberately\t furnished  inaccurate\tparticulars
\n       thereof,\t at any time within eight years, and in\t any  other
\n       case at any time within four years of the end of that  year,
\n       serve  on  the  person liable to pay  tax  on  such  income,
\n       profits\tor  gains,  or in the case of  a  company,  on\tthe
\n       principal  officer thereof, -a notice containing all or\tany
\n       of the requirements which may be included in a notice  under
\n       sub-section (2) of section 22, and may proceed to assess\t or
\n       re-assess such income, profits or gains, and the\t provisions
\n       of this Act shall, so far as may be, apply accordingly as if
\n       the notice were a notice issued under that sub-section:
\n       Provided that the tax shall be charged at the rate at  which
\n       it would have been charged had the income, profits or  gains
\n       not escaped assessment, or full assessment, as the case\tmay
\n       be:……..\n<\/p>\n
       The short question is whether income which was returned\tbut
\n       was  held  to  be exempt from tax could be said\tto  have  ”
\n       escaped\tassessment  ” so that the  Agricultural\t Income-tax
\n       Officer could exercise his powers under s. 26 of the Act\t to
\n       tax  it.\t  This question arising under s. 34 of\tthe  Indian
\n       Income-tax  Act has been considered on many an  occasion\t by
\n       the  High  Courts  and also by the Privy\t Council  and  this
\n       Court.  The Patna-High Court has correctly pointed out  that
\n       the  preponderance of opinion is in favour of  holding  that
\n       such income can be said to have escaped assessment.
\n       The High Court in deciding that the Agricultural\t Income-tax
\n       Officer\thad jurisdiction to revise his\tearlier\t assessment
\n       referred\t to the opening words of s. 26, namely, ”  for\tany
\n       reason ” and observed that it was
\n       43<\/span>
\n       338<\/span>
\n       not  necessary  to  give a restricted meaning  to  the  word
\n       “escaped “, and that if an item of income was not charged to
\n       tax due to a mistake or oversight on the part of the  taxing
\n       authorities,  that  item could well come within the  term  ”
\n       escaped “. According to the High Court, the phrase ” escaped
\n       assessment ” was not confined to cases where there had  been
\n       an  inadvertent omission, but in view of the later  part\t of
\n       the section “where income … has been assessed at too low a
\n       rate”, included a case where there was a deliberate action.
\n       Learned\t counsel  for  the  assessee  contends\t that\tthe
\n       generality of the words ” any reasonhas no bearing upon
\n       the construction of the wordsescaped assessment “, that the
\n       word ” assessment “does not connote the final determination
\n       to tax income but the entire process by which the result\t is
\n       reached,\t and  that  inasmuch as\t the  income  was  actually
\n       returned and held to be exempt, there was no question of\t an
\n       “escaped\t  assessment  ”\t because  it  passed  through\tthe
\n       processing of income.  He also contends that the later  part
\n       of the section which deals with assessment at too low a rate
\n       cannot be called in aid to decide when income can be said to
\n       have escaped assessment.\t He submits that the section has no
\n       application to cases where income is returned but is held to
\n       be  not liable to tax and relied upon the  following  cases;
\n       Maharaja\t  Bikram   Kishore  v.\tProvince  of   Assam   (1),
\n       Commissioner of Income-tax v. Day Brothers<\/a> (2), Madan  Mohan
\n       Lal v. Commissioner of Income-tax (3) (per Dalip Singh,\tJ.)
\n       and   Chimanram\tMotilal\t (Gold\tand  Silver),\tBombay\t v.
\n       Commissioner Of Income-tax (Central), Bombay<\/a> (4) (per Kania,
\n       J., as he then was).\n<\/p>\n
       The learned Attorney-General drew the attention of the Court
\n       to other cases in which the view has been taken that even if
\n       income is returned and deliberately not charged to tax,\tthe
\n       condition  required  for the application of the\tsection\t is
\n       fulfilled.   He cited the following cases in support of\this
\n       contention:   AngloPersian   Oil\t  Co.\t(India)\t  Ltd.\t v.
\n       Commissioner of IncometaX (5), P. C. Mullick and D. 0. Aich,
\n       In re(‘), The
\n       (1)[1949] 17 I.T.R. 220.\n<\/p>\n
       (2)[1936] 4 I.T.R. 209.\n<\/p>\n
       (3)[19351 3 I.T.R. 438.\n<\/p>\n
       (4)  (1942) I.L.R. 1943 BOM. 206.\n<\/p>\n
       (5)  [1933] [ I.T.R. 129.\n<\/p>\n
       (6)  [1940] 8 I.T.R. 236.\n<\/p>\n
       339<\/span><\/p>\n
       Commissioner  of\t Income-tax  v.\t Raja  of  Parlakimedi\t(1)
\n       Chimanram Moti Lal (Gold and Silver), Bombay v. Commissioner
\n       of  Income-tax (Central), Bombay<\/a> (2) and Madan Mohan Lal\t v.
\n       Commissioner  of\t Income-tax  (3).   The\t learned  Attorney-
\n       General also relied strongly upon a recent decision of  this
\n       Court  in Kamal Singh v. Commissioner of\t Income-tax,  Bihar
\n       and Orissa (4), where Gajendragadkar, J., after a review\t of
\n       all  the authorities, held that s. 34 of the Indian  Income-
\n       tax Act was applicable to a case where an item of income was
\n       returned but deliberately and after consideration, was  held
\n       to  be not liable to tax.  Learned counsel for the  assessee
\n       contends\t that  the point was left open in  that\t case,\tand
\n       refers  to Messrs.  Chatturam Horilram Ltd. v.  Commissioner
\n       of  Income’-tax,\t Bihar\tand Orissa<\/a>(5) as  having  held\tthe
\n       contrary.\n<\/p>\n
       Before  referring  to  the other\t authorities  of  the  High
\n       Courts,\tit  will be proper to see if the two cases  of\tthe
\n       Supreme Court are in point or not, and if so, which of them.
\n       In  Kamal  Singh’s  case\t (4), the  point  arose\t under\tthe
\n       following  circumstances.   The father of the  appellant\t in
\n       that  case was assessed to income-tax for the year  1945-46.
\n       The  total  income assessed to incometax\t was  Rs.  1,00,000
\n       which  included\ta  sum of RE;. 93,604 received\tby  him\t on
\n       account\tof  interest on arrears of rent due  to\t him  after
\n       deduction  of collection charges.  It was urged\tbefore\tthe
\n       Income-tax Officer that this interest was not assessable\t to
\n       income-tax  being  agricultural\t“income,  in  view  of\tthe
\n       decision\t of the Patna High Court in Kamakshya Narain  Singh
\n       v.  Commissioner of Income-tax(6).  The\tIncome-tax  Officer
\n       did not accept this contention on the ground that an  appeal
\n       was pending against the Patna High Court’s decision,  before
\n       the  Privy  Council.   On appeal,  the  Appellate  Assistant
\n       Commissioner  held that the Income-tax Officer was bound\t to
\n       follow the decision of the High Court, and he set aside\tthe
\n       order  and directed the Income-tax Officer to make  a  fresh
\n       assessment.   The Income-tax Officer thereupon deducted\tthe
\n       amount
\n       (1)  (1926) I.L.R. 49 Mad. 22.\n<\/p>\n
       (2)  (1942) I.L. R. 1943 Bom. 206.\n<\/p>\n
       (3)  [1935] 3 I.T.R. 438.\n<\/p>\n
       (4)  A.I.R. 1959 S.C. 257.\n<\/p>\n
       (5)  [1955] 2 S-C.R. 290.\n<\/p>\n
       (6)  [I946] 14 I.T.R. 673.\n<\/p>\n
       340<\/span><\/p>\n
       and  brought  only the remaining income\t(after\tsome  minor
\n       adjustments)  to\t tax.  His order was passed on\tAugust\t20,
\n       1946.   In  the year 1948, the Privy  Council  reversed\tthe
\n       Patna  High  Court’s decision.  The judgment  of\t the  Privy
\n       Council\tis  reported  in  Commissioner\tof  Income-tax\t v.
\n       Kamakshya  Narain  Singh(‘).  The  Income-tax  Officer  then
\n       issued  a notice under s. 34 of the Indian  Income-tax  Act,
\n       and after hearing the party assessed the sum of Rs. 93,604.
\n       After sundry procedure which it is not necessary to  detail,
\n       the  matter reached this Court, and the question\t which\twas
\n       before  it was ” whether in the circumstances of\t the  case,
\n       the assessment order under s. 34 of the Act of the  interest
\n       on arrears of rent is legal.”\n<\/p>\n
       Two questions were involved.  The first was whether the word
\n       ”  information ” was wide enough to include knowledge  about
\n       the state of the law or about a decision on a point of  law.
\n       With  that point we are., not concerned in this\tcase.\tThe
\n       second  was,  when  income could be  said  to  have  escaped
\n       assessment.  Emphasis was laid on the word ” assessment ” in
\n       the  arguments,\tand it was contended that  it  denoted\tnot
\n       merely  the  order of assessment, but included ”\t all  steps
\n       taken  for  the\tpurpose of levying of tax  and\tduring\tthe
\n       process of taxation.  ” It was also contended that ” escaped
\n       ” meant that the income must have eluded observation, search
\n       etc.,  or, in other words, eluded the notice of the  Income-
\n       tax  Officer.  Gajendragadkar, J., however, did not  confine
\n       the phrase to such a narrow meaning.  He
\n       observed;\n<\/p>\n
       ” Even if the assesse has submitted a return of his  income,
\n       cases  may well occur where the whole of the income has\tnot
\n       been  assessed and such part of the income as has  not  been
\n       assessed can well be regarded as having escaped\tassessment.
\n       In the present case, the rents received by the assessee from
\n       his  agricultural  lands were brought to the notice  of\tthe
\n       Income-tax  Officer;  the question as to\t whether  the  said
\n       amount  can  be assessed in law was considered  and  it\twas
\n       ultimately held that the relevant decision of the Patna High
\n       Court ‘Which was binding on
\n       (1)[1948) 16 I.T.R. 325.\n<\/p>\n
\t\t\t\t   341<\/span><\/p>\n
       the department justified the assessee’s claim that the  said
\n       income  was not liable to be assessed to tax.  There  is\t no
\n       doubt  that  a part of the assessee’s income  had  not  been
\n       assessed\t and,  in  that\t sense,\t it  has  clearly   escaped
\n       assessment.   Can  it be said that, because the\tmatter\twas
\n       considered  and decided on’ the merits in the light  of\tthe
\n       binding\tauthority of the decision of the Patna High  Court,
\n       no  income has escaped assessment when the said\tPatna  High
\n       Court  decision has been subsequently reversed by the  Privy
\n       Council?\t We see no justification for holding that cases\t of
\n       income escaping assessment must always be cases where income
\n       has not been assessed owing to inadvertence or oversight\t or
\n       owing to the fact that no return has been submitted.  In our
\n       opinion, even in a case where a return has been\t,submitted,
\n       if the Income-tax Officer erroneously fails to tax a part of
\n       assessable  income, it is a case where the said part of\tthe
\n       income  has escaped assessment.\tThe appellant’s attempt\t to
\n       put  a very narrow and artificial limitation on the  meaning
\n       of  the\tword  “escape’\tin  s.\t34(1)(b)  cannot  therefore
\n       succeed.”\n<\/p>\n
       The  assessee seeks to distinguish that case on\tthe  ground
\n       that   this   Court,laid\t down  the  law\t in   the   special
\n       circumstances  where’  a new interpretation to the  law\twas
\n       given,  and that it was not a case of the Incometax  Officer
\n       changing his mind.  He contends that there was at least some
\n       information  which  had come to the Income-tax  Officer,\t on
\n       which  his subsequent action could be rested.   The  learned
\n       counsel\targued that Gajendragadkar, J., had expressly  left
\n       the  question open, where there was no information  but\tthe
\n       Incometax  Officer  merely  changed  his\t mind  without\tany
\n       information  from  an external source.\tReference  in  this
\n       connection  is  made to the following  observations  in\tthe
\n       judgment:\n<\/p>\n
       ” It appears that, in construing the scope and effect of the
\n       provisions  of s. 34, the High Courts have had  occasion\t to
\n       decide whether it would be open to the Income-tax Officer to
\n       take  action under a. 34 on the ground that he  thinks  that
\n       his original decision in making the order of assessment was
\n       342<\/span>
\n       wrong without any fresh information from an external  source
\n       or  whether the successor of the Income-tax Officer can\tact
\n       under  s.  34  on the ground that the  order  of\t assessment
\n       passed by his predecessor was erroneous, and divergent views
\n       have  been expressed on this point.  Mr. Rajagopala  Sastri,\n<\/p>\n
       -for the respondent, suggested that under the provisions\t of
\n       s. 34 as amended in 1948, it would be open to the Income-tax
\n       Officer\tto  act under the said section even  if\t he  merely
\n       changed\this mind without any information from  an  external
\n       source  and  came to the conclusion that,  in  a\t particular
\n       case,  he  had erroneously allowed an assessee’s\t income\t to
\n       escape assessment.  We do not propose to express any opinion
\n       on this point in the present appeal.”\n<\/p>\n
       We may say at once that the words of s. 26 of the Act do not
\n       involve\tpossessing of or coming by some fresh  information.
\n       The section says:\n<\/p>\n
       ”  If for any reason any agricultural income  chargeable\t to
\n       agricultural  income-tax\t has  escaped  assessment  for\tany
\n       financial  year\tthe  Agricultural  Income-tax  Officer\tmay
\n       proceed to assess such income
\n       The  use of the words “any reason” which are of wide  import
\n       dispenses with those conditions by which s. 34 of the Indian
\n       Income-tax  Act is circumscribed.  The point which was  thus
\n       left over by Gajendragadkar, J., cannot arise in the context
\n       of the Act we are dealing with.\n<\/p>\n
       In view of this clear opinion, it is hardly necessary for us
\n       to  consider again the cases which Preceded the decision\t of
\n       this  Court.  The most important of them are  considered\t in
\n       the  judgment  of Gajendragadkar, J. Most of the\t cases\tare
\n       also  considered\t in  the judgment of Harries,  C.  J.,\tand
\n       Mukherjea, J. (as he then was) in Maharaja Bikram Kishore v.
\n       Province\t of Assam (1).\tIn all the cases where\ta  contrary
\n       view was taken, reliance was placed upon the decision of the
\n       Privy  Council  in  Rajendra  Nath  Mukerjee  v.\t Income-tax
\n       Commissioner(‘)\tparticularly  a\t passage  wherein  it\twas
\n       observed:\n<\/p>\n
       (1) [1949] 17 I.T.R. 220,
\n       (2) (1933) L.R. 61 I.A. 10, 16.\n<\/p>\n
       343<\/span><\/p>\n
       “The fact that s. 34 requires a notice to be served  calling
\n       for a return of income which had escaped assessment strongly
\n       suggests\t that income which has already been  duly  returned
\n       for  assessment cannot be said to have ‘escaped’\t assessment
\n       within the statutory meaning.”\n<\/p>\n
       The  facts of the case were entirely different.\tThe  income
\n       was  returned,  and was not yet processed  when\tthe  notice
\n       under s. 34 was issued.\tThe key to the case is furnished by
\n       the  approval  by  their Lordships of  the  observations\t of
\n       Rankin, C.J., in In re: Lachhiram Basantlal (1) that:
\n       ” Income has not escaped assessment if there are pending\t at
\n       the  time proceedings for the assessment of  the\t assessees’
\n       income  which have not yet terminated in a final\t assessment
\n       thereof.”\n<\/p>\n
       Their  Lordships\t held  that  the  expression  “has  escaped
\n       assessment”  should  not be read as equivalent to  “has\tnot
\n       been  assessed” because so to do “gives too arrow a  meaning
\n       to the word ‘assessment’ and too wide a meaning to the  word
\n       escaped’.”\n<\/p>\n
       That  those  observations  were related to  the\tfacts  then
\n       before their Lordships is clear from the following passage:
\n       ”  To say that the income of Burn & Co., which  in  January,
\n       1928, was returned for assessment and which was accepted\t as
\n       correctly  returned, though it was erroneously  included\t in
\n       the assessment of Martin & Co.’, has escaped’ assessment\t in
\n       1927-28\t seems\t to   their   Lordships\t  an   inadmissible
\n       reading…..\n<\/p>\n
       Their  Lordships find it sufficient for the disposal of\tthe
\n       appeal  to hold, as they do that the income of Burn  &  Co.,
\n       did  not ‘escape assessment’ in the year 1927-28 within\tthe
\n       meaning of s. 34.”\n<\/p>\n
       It  was\tin  the\t context  of  the  pendency  of\t assessment
\n       proceedings  that the remarks were made, and the\t matter\t is
\n       decisively cleared of any doubt by the following passage:
\n       ” It may be that if no notice calling for a return
\n       under s. 22 is issued within the tax year then s. 34
\n       (1)(1930) I.L.R. 58.  Cal. 909, 912.\n<\/p>\n
       344<\/span><\/p>\n
       provides the only means available to the Crown of  remedying
\n       the omission, but that is a different matter.”
\n       In  our opinion, the error in the cases relied upon  by\tthe
\n       assessee arises in using the dicta in the above case,  shorn
\n       of the context in which they were made and applying them\t to
\n       facts,  where they cannot.  The judgment of  Gajendragadkar,
\n       J.,   has  dealt\t with  the  matter,  if\t we  may   say\t so
\n       respectfully,  very  adequately and we do  not  consider\t it
\n       necessary to cover the same ground again.  The preponderance
\n       of opinion in the High Courts is also to accept the contrary
\n       view, and we think rightly.\n<\/p>\n
       The  learned  counsel  for  the\tassessee  argued  that\tthe
\n       decision\t of this Court in Messrs.  Chatturam Horilram  Ltd.
\n       v. Commissioner of Income-tax, Bihar<\/a>& Orissa (1) discloses a
\n       different  view, and that we should follow it in\t preference
\n       to the later view of Gajendragadkar, J. We do not think that
\n       in  the\tcase last cited the point was the same.\t  The  same
\n       case was relied upon before the Bench of Venkatarama  Aiyar,
\n       Gajendragadkar  and  Sarkar, JJ.,  and  Gajondragadkar,\tJ.,
\n       distinguished it This is what he observed:
\n       Mr.  Sastri has also relied on the decision of this Court in
\n       Messrs.\tChatturam Horilram Ltd. v. Commissioner of  Income-<\/a>
\n       tax, Bihar & Orissa (1) in support of his construction of s.\n<\/p>\n
       34.  In Chatturam’s case (1) the assessee had been  assessed
\n       to income-tax which was reduced on appeal and was set  aside
\n       by the Income Tax Appellate Tribunal on the ground that\tthe
\n       Indian  Finance\tAct of 1939, was not in\t force\tduring\tthe
\n       assessment  year\t in  Chota  Nagpur.   On  a  reference\tthe
\n       decision\t of  the  tribunal was upheld by  the  High  Court.
\n       Subsequently  the  Governor of Bihar promulgated\t the  Bihar
\n       Regulation  IV  of 1942 and thereby brought into\t force\tthe
\n       Indian Finance Act of 1939, in Chota Nagpur  retrospectively
\n       as from March 30, 1939.\tThis ordinance was -assented to\t by
\n       the  Governor-General.  On February 8, 1944, the Income\tTax
\n       Officer\tpassed an order in pursuance of\t which\tproceedings
\n       were taken against
\n       (1)[1955] 2 S.C.R. 290.\n<\/p>\n
\t\t\t\t   345<\/span><\/p>\n
       the assessee under the provisions of s. 34 and they resulted
\n       in  the\tassessment  of\tthe  assessee  to  incometax.\tThe
\n       contention which was raised by the assessee in his appeal to
\n       this  Court was that the notice issued against him under\t s.
\n       34 was invalid.\tThis Court held that the income, profits or
\n       gains  sought to be assessed were chargeable  to\t income-tax
\n       and  that  it  was  a case  of  chargeable  income  escaping
\n       assessment within the meaning of s. 34 and was not a case of
\n       mere  non-assessment of income-tax.  So far as the  decision
\n       is  concerned,  it  is in substance  inconsistent  with\tthe
\n       argument\t raised by Mr. Sastri.\tHe, however, relies on\tthe
\n       observations   -made   by  Jagannadhadas,  J.,\tthat   ‘the
\n       contention of the learned counsel for the appellant that the
\n       escapement  from\t assessment is not to be  equated  to  non-
\n       assessment  simpliciter is not without force’ and he  points
\n       out that the reason given by the learned Judge in support of
\n       the  final  decisions  was that\tthough\tearlier\t assessment
\n       proceedings  had been taken they had failed to result  in  a
\n       valid  assessment  owing\t to some  lacuna  other\t than  that
\n       attributable  to the assessing  authorities  notwithstanding
\n       the  chargeability  of income to the tax.  Mr.  Sastri  says
\n       that  it is only in cases where income can be shown to  have
\n       escaped\tassessment  owing to some lacuna  other\t than  that
\n       attributable to the assessing authorities that s. 34 can\t be
\n       invoked.\t  We  do  not  think that a  fair  reading  of\tthe
\n       judgment\t can lead to this conclusion.  The observations\t on
\n       which  reliance is placed by Mr. Sastri have naturally  been
\n       made  in\t reference to the facts with which  the\t Court\twas
\n       dealing\tand they must obviously be read in the\tcontext\t of
\n       those facts.  It would be unreasonable to suggest that these
\n       observations were intended to confine the application of\t s.
\n       34  only to cases where income escapes assessment  owing\t to
\n       reasons\tother  than  those attributable\t to  the  assessing
\n       authorities.    Indeed  Jagannadbadas  J.,  has\ttaken\tthe
\n       precaution  of  adding that it was unnecessary to  lay  down
\n       what exactly constitutes escapment from assessment and  that
\n       it would be sufficient to place their decision on 44
\n       346<\/span>
\n       the  narrow ground to which we have just referred.   We\tare
\n       satisfied  that\tthis decision is of no\tassistance  to\tthe
\n       appellant’s case.”\n<\/p>\n
       For  the reasons we have given, we are of opinion  that\tthe
\n       Agricultural Income-tax Officer was competent under s. 26 of
\n       the Act to assess an item of income which he had omitted\t to
\n       tax  earlier,  even  though in the return  that\tincome\twas
\n       included\t and  the  Agricultural\t Income-tax  Officer   then
\n       thought\tthat it was exempt.  The answer given by  the  High
\n       Court was therefore correct.\n<\/p>\n
       This  brings  us\t to the second question.   The\tincome\twas
\n       received from the leasehold properties, and was agricultural
\n       income.\t The contention of the assessee is that it  may\t be
\n       agricultural  income in the hands of the Tekari Raj but\t-in
\n       his  hands  it was capital receipt and in repayment  of\tthe
\n       loan of about Rs. 17,00,000 paid to Ram Bhuwaneshwari  Kuer.
\n       The State of Bihar, however, denies that there was a loan or
\n       a  mortgage  at\tall.  The assessee, it\tis  contended,\twas
\n       placed in possession for a number of years on a rent of\tRs.
\n       1,000  per  year and the amount paid was premium and  not  a
\n       loan.\n<\/p>\n
       The  documents  in  question  are  two.\t They  are  plainly
\n       indentures  of  lease between the Rani  and  the.  assessee.
\n       From these documents it is clear that in consideration of  a
\n       payment of Rs. 17,16,000 the lessee was placed in possession
\n       of the leasehold property for 28 years.\tThere is no express
\n       term  which  makes  the\tsum a  loan  returnable\t either\t by
\n       repayment or by the enjoyment of the usufruct.  There is\t no
\n       interest fixed or right of redemption granted.  There is\t no
\n       provision  for  any Personal liability in  case\tany  amount
\n       remained\t outstanding  at the end of the term of\t 28  years.
\n       These  are  the\ttests  to apply to  find  out  whether\tthe
\n       transaction  was\t one of zarpeshgi lease or a lease  with  a
\n       mortgage.   See\tMulla’s’  Transfer  of\tProperty  Act,\t4th
\n       Edition, page 352.\n<\/p>\n
       The learned counsel for the assessee in his careful argument
\n       took  us through the two documents and endeavoured to  prove
\n       that  the relation of debtor and creditor subsisted  between
\n       the parties.  He referred
\n       347<\/span>
\n       us to cl. 4, which embodies a provision entitling the lessee
\n       to  deduct  12 1\/2 per cent. of the gross  aggregate  amount
\n       payable\tby the mokarraridars as expenses of collection\tand
\n       other  charges  incidental  thereto after  payment  of  rent
\n       reserved to the I lessor’ and to appropriate to himself\tthe
\n       remainder.  He submitted that the payment to the lessor\twas
\n       not  a  premium but a loan and the intention  was  that\tthe
\n       lessee or creditor would be thus repaid.\n<\/p>\n
       The clause by itself may admit of diverse constructions, and
\n       possibly one such construction may be the one suggested, but
\n       that  is\t not  the true purport of the clause  read  in\tthe
\n       context\tof the rest of the instrument.\tTo  interpret  this
\n       clause  the instrument must be read as a whole, and when\t so
\n       viewed, it is found that it provides for an exemption of the
\n       lessor from the liability for collection charges.  It places
\n       beyond  doubt  that the collection charges were\tnot  to\t be
\n       debited\tto the lessor but were to be borne by  the  lessee.
\n       Unless  such a provision was included in the instrument,\t it
\n       might have been a matter of some dispute as to who was to be
\n       responsible for this expenditure.\n<\/p>\n
       The learned counsel for the assessee next drew our attention
\n       to  the last clause of the instrument of January\t 31,  1936.
\n       That,  however,\twas a special covenant, and  the  provision
\n       therein\twas  in\t relation to matters  not  covered  by\tthe
\n       instrument.\n<\/p>\n
       That the income from this leasehold property which was land,
\n       would fall within the definition of ” agricultural income  ”
\n       was  not\t seriously contested before us.\t The  case  of\tthe
\n       assessee rests upon the claim that this was a  money-lending
\n       transaction  and the receipts represented a capital  return.
\n       If, however, the payment to the lessor was premium and not a
\n       loan,  the income, being agricultural, from these  leasehold
\n       properties was assessable under the Act.\t We are of  opinion
\n       that it was so, and that the Agricultural Income-tax Officer
\n       was  right when he assessed it to  agricultural\tincome-tax.
\n       The  income  was not the income of money-lending,  and  this
\n       does  not depend upon the character of the  recipient.\tThe
\n       Thika
\n       348<\/span>
\n       profits\twere  clearly agricultural  income  being  actually
\n       derived\tfrom land.  The answer to the question by the  High
\n       Court was thus correct.\n<\/p>\n
       The  result  is\tthat  the  appeal  must\t fail,\tand  it\t is
\n       accordingly dismissed with costs.\n<\/p>\n
       Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Maharajadhiraj Sir Kameshwar … vs The State Of Bihar on 15 May, 1959 Equivalent citations: 1959 AIR 1303, 1960 SCR (1) 332 Author: Hidayatullah Bench: Hidayatullah, M. PETITIONER: MAHARAJADHIRAJ SIR KAMESHWAR SINGH Vs. RESPONDENT: THE STATE OF BIHAR DATE OF JUDGMENT: 15\/05\/1959 BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAS, SUDHI RANJAN […]<\/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-241542","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMaharajadhiraj Sir Kameshwar ... vs The State Of Bihar on 15 May, 1959 - 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\/maharajadhiraj-sir-kameshwar-vs-the-state-of-bihar-on-15-may-1959\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Maharajadhiraj Sir Kameshwar ... vs The State Of Bihar on 15 May, 1959 - 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