Double taxation relief must be claimed in assessment proceedings; a late refund-based claim and appeal were barred.

Relief under a double taxation agreement had to be claimed within the assessment process, not after final assessment and payment. The assessee's application was treated as one for abatement, but it was made too late because the assessments had been completed, the tax paid, and no outstanding demand remained for adjustment; if treated as a refund claim under section 48, it was also barred by limitation. The rejection of that late claim did not itself give rise to a further appeal, since the proper challenge was against the original assessment orders while they remained open.

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Issues: (i) Whether the assessee's application dated 30 December 1953 was a valid claim for refund under the Indian Income-tax Act or only a claim for abatement under the agreement for avoidance of double taxation, and whether any relief was available at that stage; (ii) whether an appeal lay against the Income-tax Officer's rejection of the claim.

Issue (i): Whether the assessee's application dated 30 December 1953 was a valid claim for refund under the Indian Income-tax Act or only a claim for abatement under the agreement for avoidance of double taxation, and whether any relief was available at that stage.

Analysis: The application, on its true terms, sought abatement and not refund. Relief under the double taxation agreement had to be claimed at the assessment stage, or by obtaining and retaining an estimated abatement when the tax in the other Dominion was not yet known. After the assessments had been completed, the tax had been fully paid, the time for appeal had expired, and no outstanding demand remained capable of adjustment under the agreement. A refund application under section 48 also could not succeed because the assessed tax had become final and the claim, if treated as one for refund, was barred by limitation.

Conclusion: The assessee was not entitled to abatement at that stage, and the application could not succeed as a valid refund claim; if treated as a refund claim, it was time-barred.

Issue (ii): Whether an appeal lay against the Income-tax Officer's rejection of the claim.

Analysis: The order rejecting the late claim for abatement did not give rise to an appeal under the Act in the circumstances. The proper avenue would have been an appeal against the original assessment orders while they were still open, but that period had already expired.

Conclusion: No appeal lay against the Income-tax Officer's order rejecting the claim.

Final Conclusion: The reference was answered against the assessee on the substantive questions, leaving the original assessments undisturbed and no relief available under either the double taxation agreement or the refund provisions.

Ratio Decidendi: Relief under an agreement for avoidance of double taxation must be claimed within the statutory assessment machinery and cannot, after final assessment and payment, be converted into a refund or adjusted in the absence of an outstanding demand.

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