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TMI Blog1962 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... nd proviso to sub-section (3) of section 34, as amended in 1953, saves the proceedings impugned. For the reasons given by me in S. C. Prashar, Income-tax Officer, Market Ward, Bombay v. Vasantsen Dwarkadas, in which judgment has been delivered today, I would dismiss the appeal with costs. KAPUR J. --- This is an appeal brought on behalf of the revenue against the judgment and order of the High Court of Bombay on a certificate granted by that court. In W. P. No. 1400 of 1957 the present respondent challenged the jurisdiction of the Income-tax Officer to issue notice under section 34(1) of the Indian Income-tax Act, hereinafter called the "Act". The assessment years are 1944-45, 1945-46 and 1946-47 and the notice was issued by the Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued and the order in that case was passed on March 6, 1956. Against that order an appeal was taken to the Appellate Assistant Commissioner which is still pending. It appears that for the year of assessment 1945-46 no notice under section 34(1) of the Act was issued. In 1946 the respondent on behalf of the Hindu undivided family filed a suit against one Jagannath Ramkishan for rendition of accounts as the munim of the respondent. His defence was that he was a partner and not a munim which was accepted and the suit was dismissed. An appeal against that decree was dismissed by the High Court. Jagannath Ramkishan died during the pendency of the appeal and his widow, Kalavati, was impleaded. In the meantime proceedings under section 34(1)(a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divided family who had been assessed as such for the years 1944-45 to 1946-47 and appeals from the assessment orders in respect of these years were pending. The assessee had filed in 1946 a suit against an ex-employee, Jagannath Ramkishan, for accounts of certain transactions. Jagannath Ramkishan contended that he was not an employee but the transactions were the transactions of a business carried on in partnership between him and the assessee. The trial court upheld the contention of Jagannath Ramkishan. The assessee appealed to the High Court of Bombay against the decision of the trial court but in the meantime Jagannath Ramkishan had died and his wife, Kalavatibai, had been substituted in his place in that appeal. The High Court dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder. The High Court allowed the writ. Hence this appeal. The only question in this appeal is whether the second proviso to section 34(3) of the Income-tax Act, 1922, as amended in 1953, could save the proceedings impugned. For the reasons mentioned in my judgment in Commissioner of Income-tax v. Sardar Lakhmir Singh (Civil Appeals Nos. 214 and 215 of 1958), I think that that proviso is invalid as offending article 14 of the Constitution and affords no protection to the revenue authorities. It may be added that the impugned notice was issued in consequence of an order under section 31 in a proceeding to which the assessee was not a party. In the result the appeal is dismissed with costs. HIDAYATULLAH and RAGHUBAR DAYAL JJ. dealt with thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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