TMI Blog1971 (8) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... mit a supplementary statement of case on the question whether the proceedings under section 10A were started in the course of assessment or reassessment proceedings commenced under section 15 of the Excess Profits Tax Act, 1940, hereinafter called the " Act ". The facts set out in the supplementary statement of the case may be recapitulated. M/s. Gurbux Rai Harbux Rai, hereinafter referred to as the " assessee ", is a registered firm carrying on business in piece-goods. During the chargeable accounting period July 4, 1943, to June 21, 1944, and June 22, 1944, to July 10, 1945, Gurbux Rai and Harbux Rai (each representing his joint family) were the two partners of the assessee with equal shares. In the proceedings for assessment of tax un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bux Rai. This is what he held : " ...that partial partition in respect of movable property of Gurbux Rai was effected on a date somewhere near Asadh Samwat 2000, from which date Farrukhabad business was conducted by a separate firm consisting of Harbux Rai, Mst Chameli and Gopaldas. " The income-tax assessments were consequently modifed for the two assessment years 1944-45 and 1945-46. The Excess Profits Tax Officer also started proceedings under section 10A of the Act by serving a notice dated February 3, 1951, on the assessee. The notice required the assessee to show cause why proper adjustment should not be made on the footing that the main purpose of the partial partition of the family of Gurbux Rai was the avoidance of the excess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notices under section 15 of the Act were issued for both the chargeable accounting periods and they were served on the assessee on February 3, 1951. According to these notices the assessee was called upon to show cause why provisions of section 10A of the Act should not be invoked. The assessee submitted a written reply objecting to the applicability of section 10A. The Excess Profits Tax Officer obtained approval of the Inspecting Assistant Commissioner and passed an order under section 10A on February 21, 1951. According to the Tribunal the proceedings under section 15 were pending for both the chargeable accounting periods when the proceedings under section 10A of the Act were started by the Excess Profits Tax Officer. It has been adde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... included in a notice under section 13 and may proceed to assess or reassess the amount of such profits liable to excess profits tax. The power so conferred can be exercised in the course of the original assessment or reassessment. It is essential, according to the law laid down by this court, that before any action can be taken or an order made under section 10A there should be a proceeding which should be pending for assessment or reassessment of excess profits tax. In other words, in the present case, before the provisions of section 10A could be applied, the tax officer was bound to initiate proceedings under section 15. According to what the Tribunal has said in the supplementary statement of the case the proceedings under section 15 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion which came into the possession of the Excess Profits Tax Officer not because of any change of opinion by himself but because of the decision of the Appellate Assistant Commissioner in the income-tax proceedings. This court has consistently held that the Income-tax Officer would have jurisdiction to initiate proceedings under section 34(1)(b) of the Income-tax Act, 1922, which is in pari materia with section 15 of the Act if he acted on information received from the decision of the superior authorities or the court even in the assessment proceedings. (See R. S. Bansilal Abirchand Firm v. Commissioner of Income-tax and Assistant Controller of Estate Duty, Hyderabad v. Nawab Sir Osman Ali Khan Bahadur, Hyderabad ). It has next been urged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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