1966 (2) TMI 85

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....ing June 30, 1949. That return was also made under the Mysore Act. The Income-tax Officer did not make any specific order of assessment on that return. But, there is no doubt, he accepted the return in question as correct. That is clear from the fact that he refunded a sum of Rs. 641-3-0 to the assessee, that sum having been arrived at on the basis of the difference in the rate of tax applicable to the assessee and the maximum rate. As a result of the investigation carried on in respect of the assessment for the years 1951-52 and 1952-53, the Income-tax Officer was of the opinion that the assessee's income had escaped assessment in the accounting year ending June 30, 1949. He, therefore, issued notice under section 34 of the Indian Inco....

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....essee. The fact that there was no assessment order as such is wholly immaterial. Our conclusion in this regard is supported by the decision of the Supreme Court in Esthuri Aswathiah v. Income-tax Officer, Mysore. In that case, the Income-tax Officer had ordered "no proceedings" in the return submitted by the assessee. The Supreme Court interpreted that order as meaning that the Income-tax Officer had accepted the return submitted by the assessee. The same reasoning applies to the facts of the present case. Therefore, we come to the conclusion that the assessee had been assessed for the accounting year ending June 30, 1949. 3. This takes us to the true scope of clause 5(1) of the Order. That clause reads : "The income, profits an....

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....entity of income or sources; that it is only in cases where an income had been assessed under the Mysore Act, that the Income-tax Officer is prohibited from taking further action thereon. On this point, we are unable to agree with the conclusion of the Appellate Tribunal. On the other hand, we are of the opinion that the view taken by the Appellate Assistant Commissioner is the correct view. Otherwise, what would happen is that there would be two assessments in respect of the income of an assessee during one assessment year. The learned counsel for the revenue concedes that so far as the income of the assessee obtained by him as a share in the firm's income is concerned, the same has already been assessed to tax. That income cannot be a....