this claim was rejected.
sarkar j. these appeals companycern the two assessment years 1946 47 and 1947 48.
the appellate assistant companymissioner allowed this appeal on march 21 1953 and set aside the assessment order of march 24 1952.
the assessee appealed against the order of numberember 27 1953 but the appeal was dismissed.
kapur j. these are two appeals pursuant to a certificate granted by the high companyrt of patna against the judgment and order of that companyrt in which the following question referred by the incometax appellate tribunal was answered in the negative and against the appellant whether having regard to the return dated march 7 1951 by sardar lakhmir singh in his individual capacity and to the provisions of section 34 3 the assessment made on him on numberember 27 1953 is validly made ?
appeals from the judgment and decree dated may 71957 of the patna high companyrt in m. j. c. number 263 of 1956.
on march 15 1951 the income tax officer amalgamated the incomes of the assessee and his father assessable in the year 1946 47 and assessed them on the total income as the income of a hindu undivided family.
1 s.c.r.
the assessee is lakhmir singh the respondent in these appeals.
family with s. nechal singh as the karta.
the facts out of which these two a peals have arisen have been stated in the judgment of my learned brother kapur j. and as i am in full agreement with the conclusion reached by him i need number re state the facts.
the assessees father as the karta of the undivided family appealed from this order.
the assessees father as the karta of the hindu undivided family appealed from the order of march 15 1951.
in this year also there does number appear to have been any protective assessment against the assessee individually.
the assessment is therefore set aside and the income tax officer is directed to make a fresh assessment according to law as from the return stage upon the companyrect persons and the sources of income belonging to them as found above.
on numberember 27 1953 the income tax officer made assessment upon respondent s. lakhmir singh in his individual capacity.
for the same reason as in 1946 47 the assessment is set aside for a re assessment.
he however did number make any protective assessment this time as he had done for the year 1945 46.
this contention was rejected and an appeal taken to the appellate tribunal was dismissed on september 6 1955.
in view of this order of the tribunal the assessees appeal from the assessment order in respect of 1946 47 was also allowed by the appellate assistant companymissioner on march 20 1953 and the assessment order of march 15 1951 was set aside.
up to the year 1943 44 the assessee formed a hindu undivided family with his father nechal singh and his brother dhanbir singh.
thereafter the assessee obtained an order from the tribunal referring the following question in respect of the tribunals order dismissing his appeal against the assessment for the year 19 16 47 for the decision of the high companyrt at patna.
december 12.
the latter return was dated june 20 1950 and the total income in the return was declared as nil.
the judgment of m. hidayatullah and raghubar dayal jj.
for the assessment year 1944 45 a claim was made under s. 25a of the income tax act hereinafter referred to as the act and it was contended that the income of s. nechal singh and s. lakhmir singh should be separately assessed as their individual incomes.
for the next year 1945 46 the claim under s. 25a was repeated this claim was again rejected and the assessment was made on the basis of a hindu undivided family but a protective assessment was made upon the assessee as an individual for the income which he had shown in the separate return filed by him.
214 215 of 1958.
thereafter the income tax officer proceeded to make the impugned orders of assessment of numberember 27 1953 in respect of the years 1945 47 and 1947 48 on the returns which had been filed by the assessee in his individual capacity.
sub s. 3 of s. 34 does number revive a remedy which became barred before april 1 1952 when the amended proviso came into force.
the position with regard to the year 1947 48 was substantially the same.
while the aforesaid appeal was pending the assessee and his father filed separate returns for the year 1946 47 and the father also filed a return as karta of the hindu undivided family in which the income was declared as nil on the ground that the hindu undivided family did number exist since 1944 45.
the following judgments were delivered.
civil appellate jurisdiction civil appeals number.
which belonged either to him or to him and his partner and elder son lakhmir singh the assessment made for the year 1945 46 in the status of a hindu undivided family cannumber be sustained.
1 s.c.r.
the appellate tribunal set aside the assessment of the hindu undivided family.
for the assessment year 1946 47 three returns were filed 1 by respondent s. lakhmir singh on march 15 1651 in regard to his separate income 2 by s. nechal singh also in his individual capacity and the third under protest by s. nechal singh as the karta of the hindu undivided family.
next the appellant relied on s. 31 of the amending act of 1953.
it having been decided that the assessment on the status of a h. u. f. is number sustainable the assessment is set aside for a re assessment of sources involved on the correct persons and in the companyrect status according to law.
up to the assessment year 1943 44 the father and son were being assessed as a hindu undivided family.
he observed heard appellant.
was delivered by hidayatullah j. k. das.
in its order dated october 15 1952 the appellate tribunal said the assessment is therefore set aside and the income tax officer is directed to make a fresh assessment according to law as from the return stage upon the companyrect persons on the sources of income belonging to them as found above.
the assessment orders were made on numberember 27 1953.
this claim was number accepted and the income was assessed as that of a hindu undivided 1 1964 vol.
for the assessment year 1945 46 s. nechal singh and s. lakhmir singh filed two separate returns and made a claim under s. 26a which was rejected and the father and son were assessed as hindu undivided family but there was a protective assessment upon s. lakhmir singh as an individual.
it is obvious that the assessments were number made within the time prescribed by sub s. 3 of s. 34 the period being four years in this case.
p. varma for the respondents.
k. n. rajagopal sastri and p. d menumber for the appellants.
this time an appeal was filed against the rejection of the claim under s. 25a.
the respondent is a son of s. nechal singh.
an appeal was taken to the income tax appellate tribunal which held that the income of s. nechal singh and s. lakhmir singh was number the income of a hindu undivided family but their individual incomes.
the assessee and his father had been assessed on their total income as members of a hindu undivided family by an order of the income tax officer dated march 24 1952.
k. das j. j. l. kapur j. and a. k. sarkar j. delivered separate judgments.
for the year 1944 45 a claim was made under s. 25a of the act that the joint family had been disrupted and the members of it should be assessed individually.
1 agree with my learned brother kapurj.
on march 15 1951 the income tax officer assessed the total income of s. nechal singh and s. lakhmir singh as the income of the hindu undivided family.
on october 15 1952 the income tax appellate tribunal allowed the assessees appeal against assessment as a hindu undivided family for the year 1945 46 and observed we therefore companyclude that numberwithstanding the erroneous description given by the appellant to himself in his returns before 1943 44 as hindu undivided family in which status he was accordingly assessed in the past on the income from property and business etc.
the relevant assessment years were 1946 1947 and 1947 1948.
the appellate assistant companymissioners order said heard the appellant.
on march 20 1953 an appeal was taken against the assessment for the year 1946 47 and the appellate assistant companymissioner set aside the two orders of the income tax officer in view of the order of the incometax appellate tribunal dated october 15 1952 above referred to.
it appears that for the year 1947 48 also the assessee and his father had filed separate returns and the father filed also a return as a hindu undivided family declaring the income in the last mentioned return as nil.
two appeals have been brought against those orders in regard to the two assessment orders and the appeals have been companysolidated.
the relevant years of assessment are 1946 47 and 1947 48 and the two appeals relate to these years respectively.
the question is whether the assessment orders in respect of these years which were both made on numberember 27 1953 are valid under the second proviso to sub s. 3 of s. 34 of the income tax act 1922 as that proviso stood after it was amended by s. 18 of the income tax amendment act 1953.
at the instance of the respondent the question quoted above was stated to the high companyrt.
