TMI Blog1964 (7) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... eceiving a sum of Rs. 1,000 a month from the trust fund created by the Nizam on 6th August, 1950, referred to as H. E. H. the Nizam's Miscellaneous Trust, for the benefit of his family and dependants. It would suffice to note that Ghousunnissa was receiving this allowance from the trust fund set part under the trust which consisted of (1) a loan of Hali sicca Rs. 4,50,00,000 deposited with the Government of Hyderabad bearing interest at 1 1/4% ; (2) a Government of India loan of the face value of Rs. 25,00,000 bearing interest at 2 3/4% and (3) 3% Government of India loan, 1970-75, of the face value of Rs. 8,00,000. Two other step-sisters of the Nizam were also receiving like amounts from the trust fund ; but we are not concerned with their affairs now. The trustees were the accountable persons under the Act. They filed returns under the Estate Duty Act on the death of Ghousunnissa Begum. The Assistant Controller of Estate Duty, Hyderabad, by his order dated 31st March, 1958, assessed the value of the property liable to estate duty at Rs. 6,61,347 and an amount of Rs. 83,519.40 was assessed as the estate duty payable. The accountable persons appealed to the Central Board of Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that date the Income-tax Act is to be read as including the new section as a part thereof and if it is to be so read. the further effect of the express language of the section is that, so far as cases coming within clause (a) of sub-section (1) are concerned, all assessment years ending within eight years from the 30th March, 1948, and from subsequent dates, are within its purview and it will apply to them, provided the notice contemplated is given within such eight years. " and further thus : " The question is not one of retrospective operation at all but a question of what the section says and how far the section, having come into force on the 30th March, 1948, extends by its own words. Had the section merely created a right in favour of the Income-tax Officer to issue a notice in respect of escaped or under-assessed income and not included a provision as to the period up to which, computed from the end of the assessment year concerned, the right could be exercised, a question might conceivably arise as to whether it was intended to be retrospective in operation, but in view of its clear terms, the section gives rise to no such question. " It is seen that under section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een rectified on the ground of a mistake apparent from the record, and, therefore, the assessees have acquired a vested right against any inter. ference with the finality of the assessment made on them. " The said view was referred to with approval by the Supreme Court in Income-tax Officer, V Circle, Madras v. S. K. Habibullah . In the said case, the Supreme Court pointed out that the power of rectification conferred by section 35(1) of the Income-tax Act might be exercised subject to two conditions : (1) that there was a mistake apparent from the record of the assessment, and (2) that the order of rectification was made within four years from the date of the assessment sought to be rectified. It was also pointed out that the said section, before the introduction of the new Subsection (5) on 1st April, 1952, could not be resorted to by the income-tax authorities for rectification of the assessments of the assessee, for there was no error apparent from the record of those assessments relating to that particular assessee. It was held by the Supreme Court thus : " The provision enacted by clause (5) is not procedural in character ; it affects vested rights of the assessee. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law would have applied to it if the 1953 Act had not been passed. It may also be, as was said in the Calcutta Discount Co.'s case, that, by itself, the 1948 amendment of section 34 would not have permitted assessment proceedings in respect of 1942-43 to be commenced in 1949 when under the previous law the time to issue a notice and to make an assessment for that year had expired before the 1948 amendment had come into force. All this, however, is to no purpose. No such question arises here. The legislature had undoubtedly the power to make section 34 as amended in 1948 apply to an assessment for 1942-43 by giving it retrospective operation in spite of the time to issue a notice and to make an assessment fixed by the pre-existing law having expired before the amendment came into effect. The question really is one of interpretation, namely, whether the legislature had given such retrospective operation. Now it seems to me that section 31 of the 1953 Act clearly gives section 34 of the principal Act as amended in 1948 such retrospective operation. It plainly makes section 34 as so amended applicable to assessments for years ended before the amendment came into force. It does not sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the person accountable to submit an account as required under section 53 and may proceed to assess or reassess such property as if the provisions of section 58 applied thereto. " It is argued for the department that the observations in the appellate order of the Central Board of Revenue constitute the information on which the Controller could proceed to reassess. We may appropriately refer to the case set out in the counter-affidavit of the Controller : " Para. 9 ...... In the instant case, the apparent undervaluation of the deceased's interest, which was pointed out by the appellate authority is sufficient information to constitute a reason to make this respondent reasonably believe that there was an escapement of assessment by reason of undervaluation, and justify the initiation of the reassessment proceedings under section 59 of the Act.." The appellate order is one of confirmation of assessment as already made. The observations relied on are as under : " In the calculation which I have made in paragraph 7 above, I have assumed the yield from the loan only at 1 1/4%. i.e., the interest has not been grossed up as in the calculation made by the Assistant Controller. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 to tax. We do not see that the instant case presents any similarity to the one cited to us. On the contrary, it has been held consistently that information expressed on the same facts could not be information. In Commissioner of Income-tax v. Janab S. Khaderwalli Sahib, a Bench of the Madras High Court observed thus : " It is clear that a mere change of opinion based on the same facts and figures which were present to the mind of the Income-tax Officer at the time of the original assessment does not amount to discovery. The discovery must be the result of definite information, that is to say new information that has come to the knowledge of the Income-tax Officer. The Income-tax Officer cannot act under this section even though the taxpayer has escaped assessment if he is acting on information which was already in his possession and within his knowledge. Unless it can be said that there is fresh information which was not in his possession at the time when the original assessment was made, action under section 34 of the Income-tax Act is not justified. The mere fact that a different opinion on the same facts was taken by somebody else is not definite information leading to d ..... 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