TMI Blog1948 (9) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... f one Laxmi Narain Bhadani under Section 66(1) of the Income-tax Act. Mr. Bhadani and his brother and son constituted formerly a Hindu undivided family, and were assessed in that status for income-tax up to the end of the assessment year 1939-40. In the course of assessment for 1940-41, partition was claimed and the Income-tax Officer, after necessary enquiries, by an order dated the 9th of February, 1941, under Section 25A, accepted the claim of partition. During 1943-44 the In. come-tax Officer discovered that the Hindu undivided family had been under assessed for 1939-40, which fact was not disputed. Thereupon he took action under Section 34. Notice under that section was issued in the name of the Hindu undivided family and served upon M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he inquiry have been served on all the members of the family. (2) Where such an order has been passed, or where any person has succeeded to a business, profession or vocation formerly carried on by a Hindu undivided family whose joint family property has been partitioned on or after the last day on which it carried on such business, profession or vocation, the Income-tax Officer shall make an assessment of the total income received by or on behalf of the joint family as such, as if no partition had taken place, and each member or group of members shall, in addition to any income-tax for which he or it may be separately liable and notwithstanding anything contained in sub-section (1) of Section 14, be liable for a share of the tax on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22, and may proceed to assess or reassess such income, profits or gains, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section Provided that the tax shall be charged at the rate at which it would have been charged had the income, profits or gains not escaped assessment or full assessment, as the case may be : Provided further that when the income, profits or gains concerned are income, profits or gains liable to assessment for a year ending prior to the commencement of the Indian Income-tax (Amendment) Act, 1939, or where the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents on the various members are to be made in accordance with the provisions of Section 23. But there is no reference to Section 34, and upon this is founded the argument that there is no provision in the Act for proceeding under Section 34 in such a case. The fallacy in the argument, in my judgment, lies first in this that Section 34 is not an assessment section. In proceeding under Section 34 the assessment is still made under Section 23. There was, therefore, no necessity in Section 25A to refer separately to Section 34. Secondly, Section 34 does provide that the Income-tax Officer shall serve on the person liable to pay the tax a notice in accordance with the requirements of Section 22(2), and thereupon the provisions of the Act shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the karta, but would be made over to each member concerned. The karta in such a case would not be in a position to make the return. The members holding the books would have to co-operate. Moreover, by the time proceedings are taken under Section 34 the karta may be dead. There is no question of any one else taking his place, and, therefore, notice could only be issued upon each member. It is unnecessary upon the present reference to express any opinion as to the liability of such members as did not receive any notice. Their cases are not before us. The irregularity cannot affect the position of Mr. Laxmi Narain Bhadani as he did get the required notice and made the return without objection. Under the proviso to Section 25A(2) he is li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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