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The Commissioner Of Income-Tax, Madras v. K.M.N.N Swaminathan Chettiar, Karaikudi

Madras High Court
Apr 24, 1947
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

R.C No. 30 of 1946

Attorney(S)

Mr. C.S Rama Rao Sahib for Appts.

Mr. T.V Viswanatha Aiyar for Respts.

JUDGES

Gentle, C.J

Patanjali Sastri, J.

ACTS

Section 34, Sub-section (I), viz., " the provisions of this Act

Sub-section (2) of Section 25-A read with Section 34

Section 66 (I) of the Indian Income-tax Act, 1922,

SECTION 34 A INCOME TAX ACT

Sub-section (3) of Section 25-A

Sub-section (2) of Section 25-A

Section 25-A and Section 34

Sub-section (2) of Section 22

69 (P.C.) 29 Section 25-A

69 (P.C.), Section 25-A

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Structured Summary of the Opinion

Factual and Procedural Background

This reference arises from an assessment under Section 34 of the Indian Income-tax Act, 1922, on K. M.N.N. Swaminathan Chettiar (the assessee), who had been the karta of a Hindu undivided family (HUF) until a partition of the family property on 21 January 1940. For the year 1939-40 the assessee was assessed separately in two capacities: as karta of the family (for family income) and in his individual capacity (for private income). The present reference concerns only the assessment of the family income.

Before the Income-tax Officer (ITO) the assessee contended that income received outside British India in 1938-39 should not be included because the family was "not ordinarily resident;" the ITO rejected this, but the Appellate Assistant Commissioner (AAC) allowed the claim and on 23 August 1940 a fresh assessment excluded the foreign income.

For assessment year 1940-41 the assessee claimed that, because of the partition on 21 January 1940, no assessment on the family should be made for that year; the ITO rejected this claim, but the AAC accepted the partition and ordered assessment on that footing by order dated 17 August 1942.

Separately, the ITO obtained materials indicating the family was "ordinarily resident" in 1938-39 and issued on 6 July 1942 a notice under Section 34 addressed to the assessee requiring a return for the year ending 31 March 1939. The assessee, understanding the notice to relate to the family income, returned the family income on 29 August 1942 describing his status as "Hindu undivided family not ordinarily resident" and signing as "Manager, H.U.F." The ITO rejected the non-residence claim and purported to make a supplemental assessment on the family as resident and ordinarily resident (order dated 21 October 1942), computing additional tax of Rs. 13,466 to be adjusted against a refund due for 1941-42.

The assessee appealed to the AAC and, for the first time in the memorandum of grounds of appeal, contended that the supplemental assessment under Section 34 was not sustainable because the HUF had ceased to exist on 21 January 1940 and therefore when the notice was served (6 July 1942) there was no family to be assessed. The AAC disallowed this contention, holding that Section 25-A authorises assessment on a family after it has ceased to exist. The Income-tax Appellate Tribunal (ITAT), however, allowed the appeal, holding that Section 25-A did not apply and that the notice under Section 34 was invalid because it did not indicate whether the assessee was to be assessed as karta or individually.

The Commissioner of Income-tax applied under Section 66(I) for a reference of the legal questions arising from the ITAT's order to this Court. The Tribunal referred the question set out below for the Court's decision.

Legal Issues Presented

  1. Whether, in the circumstances of this case, a notice for re-assessment of a Hindu undivided family under Section 34 of the Income-tax Act is valid on a member of the family (the karta) after the family has partitioned and thereby disrupted, particularly when that member was also taxed individually for the relevant assessment year.
  2. Whether Section 25-A is applicable to an assessment made under Section 34 in respect of income received by an undivided family in an earlier year after the family was disrupted by partition.
  3. Whether a notice under Section 34 issued to the assessee without indicating in what capacity (as karta of the family or in his individual capacity) can be regarded, in the circumstances of the case, as a valid notice to the family.

Arguments of the Parties

Appellant (Assessee) — principal arguments (as recorded)

  • Section 25-A cannot apply to the present case because it contemplates situations where, at the time of making an assessment under Section 23, a claim is put forward that a partition has taken place. Here, the assessment now under challenge was made under Section 34, and no claim of partition could have been made at the time of the original Section 23 assessment for 1939-40 (the partition occurred in January 1940).
  • The notice dated 6 July 1942 under Section 34 was defective because it did not specify in what capacity the assessee was called upon to make a return (i.e., as karta of the family or in his individual capacity), and therefore was not a valid notice to the family.

Respondent (Commissioner) — principal arguments (as recorded)

  • Sub-section (3) of Section 25-A can operate independently of Sub-sections (1) and (2); because the formal order accepting partition had not been recorded until 17 August 1942, families should be deemed to continue undivided until such an order, and thus the family should be treated as undivided on 6 July 1942 when the Section 34 notice was issued.
  • Implicitly, the Commissioner contended that the legal fiction or deeming provisions in Section 25-A should avail the revenue in making a supplemental assessment under Section 34.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sunder Singh Majithia v. Commissioner of Income-tax, United and Central Provinces (1942) 2 M.L.J. 761 : L.R. 69 I.A. 119 : I.L.R. (1943) All. 69 (Privy Council) Explanation that Section 25-A addresses the difficulty of assessing income received by an undivided family in the year of account when the family has ceased to exist by the time of assessment; it provides that assessment should be made as if no partition had taken place. The Court relied on this analysis to interpret Section 25-A and to show that the section is directed to disrupted HUFs; it supported the proposition that Section 25-A's fiction can be relevant to assessments and guided the Court in deciding whether Section 25-A could be applied to assessments under Section 34.
Gopaldas Purushotamdas v. Commissioner of Income-tax, I.L.R. 1940 All. 841 Authority for the principle that where a notice does not specify the capacity in which an assessee is required to make a return, but the assessee treats the notice as applying to a particular capacity and makes a return without seeking clarification, he cannot later challenge the legality of the notice on that ground. The Court applied this principle to hold that the assessee, who returned as HUF Manager without seeking clarification, waived any objection to the notice's lack of specificity and could not later rely on that irregularity to invalidate the assessment under Section 34.
Maharajadhiraj of Patiala v. The Commissioner of Income-tax (Central) Bombay, I.L.R. 1943 Bom. 224 Cited as supporting authority on challenges to notices and the need for an assessee to seek elucidation rather than sleep on rights when unclear notices are served. Relied on by the Court alongside Gopaldas to reinforce the conclusion that the assessee's failure to seek clarification amounted to waiver of the procedural objection to the notice.
Tarak Nath Bagchi v. Commissioner of Income-tax, Bengal (1946) I.T.R. 319 Another supporting precedent on the consequences of an assessee's conduct when confronted with an unclear tax notice. Used by the Court as additional support for the finding that the assessee waived the objection to the specificity of the notice by making a return as HUF Manager without request for clarification.

Court's Reasoning and Analysis

The Court's reasoning proceeds in distinct steps, each grounded in the statutory language and the authorities cited in the record:

  1. Statutory Text and Interaction: The Court examined the text of Section 25-A (which addresses assessment where a previously undivided Hindu family claims partition) and Section 34 (which authorises supplemental assessment where income has escaped assessment). The Court placed emphasis on the concluding language of Section 34(1): "the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice under that sub-section," and treated those words as apt to import other provisions of the Act (including Section 25-A) into supplemental assessment proceedings.
  2. Scope of Section 25-A: Drawing on the Privy Council's analysis in Sunder Singh Majithia, the Court observed that Section 25-A is aimed at the difficulty of assessing income that was received by a family in the year of account but where the family has been disrupted by the time of assessment. Section 25-A provides that where partition is established, assessment should be made as if no partition had taken place, and where no such order is passed after inquiry, the family is deemed to continue for purposes of the Act.
  3. Rejection of Alternate Interpretations: The Court rejected two lines of argument advanced against applying Section 25-A in this context:
    • It disagreed with the assessee's narrow reading that Section 25-A applies only where a claim under that section was raised at the time of the original Section 23 assessment for that year. The Court reasoned that the concluding words of Section 34 bring the procedural regime of Section 23 (and hence Section 25-A) into play for supplemental assessments made under Section 34.
    • It also rejected the Commissioner's argument that Sub-section (3) of Section 25-A operates independently to deem families undivided until an officer's order is recorded. The Court held that Sub-section (3) is complementary to (1) and (2) and refers to cases where a claim under Sub-section (1) had been made and rejected; it does not broadly make every family undivided until a formal order is recorded by the tax authorities. The family must be regarded as having ceased to exist on the date of partition as alleged by the assessee, even if the formal adjudicatory order accepting partition comes later.
  4. Application to the Present Case: The Court found that, in the Section 34 proceedings, a claim that a partition had taken place was indeed put forward (for the first time) before the Appellate Assistant Commissioner; the AAC accepted partition and sustained the assessment on the footing that the family had been disrupted on 21 January 1940. The Court considered the AAC's approach—sustaining assessment under Sub-section (2) of Section 25-A read with Section 34—to be correct in the circumstances.
  5. Practical Effect and Procedure: Although Sub-section (2) contemplates separate assessments on the various members or groups, the Court noted that because all members are made jointly and severally liable for the tax on the total income, practically it made no substantive difference in the present case whether the ITO assessed the family through its karta or assessed individual members on the footing of prior disruption. The absence of separate assessments initially resulted from the assessee not having raised the claim earlier before the ITO.
  6. Validity of the Section 34 Notice: Addressing the objection that the notice of 6 July 1942 did not indicate whether the assessment was to be on the assessee personally or as karta, the Court concluded that the notice, being addressed to the person liable to pay, was properly served on the karta who remained a person liable to pay the tax. The assessee treated the notice as a call to produce the family return and did so without complaint until the matter reached the Tribunal.
  7. Waiver of Irregularity: Even if the notice were defective for not specifying capacity, the Court found that any such irregularity was waived by the assessee's conduct (making a return as HUF Manager without seeking clarification). The Court relied on precedent (notably Gopaldas Purushotamdas and other cited authorities) to hold that an assessee who, when confronted with an ambiguous notice, returns in a particular capacity without seeking elucidation cannot later object to the notice's legality.

Holding and Implications

Holding: For the reasons indicated in the opinion, the Court answered the referred question in the affirmative.

Consequences and direct effects on the parties:

  • The supplemental assessment made under Section 34 (treated and sustained under Section 25-A read with Section 34) was held to be valid in the circumstances; serving the Section 34 notice on the karta was valid because he was a person liable to pay the tax assessed.
  • The assessee's procedural objection to the notice's failure to specify the capacity in which he was to be assessed was not sustained: the Court held the objection to have been waived by the assessee's conduct in making the return as HUF Manager without seeking clarification.
  • The assessee was ordered to pay the costs of the Commissioner in the sum of Rs. 250.

Broader implications: The opinion applies existing statutory provisions (Sections 25-A and 34) and cited precedents to resolve the dispute between the parties. The judgment explains how the deeming/fiction in Section 25-A is engaged in the context of supplemental assessments under Section 34 and confirms that procedural irregularities in notices can be waived by an assessee's conduct. The opinion does not elaborate further policy or broader tax law reforms beyond these conclusions.

Decision delivered by Frederick William Gentle, C.J.; the other judge concurred.

Show all summary ...

1. This reference by the Income-tax Appellate Tribunal, Madras Bench, under Section 66 (I) of the Indian Income-tax Act, 1922, arises out of the assessment for the year 1939-40 made under Section 34 on one K. M.N.N. Swaminathan Chettiar, Karaikudi (hereinafter referred to as the asssessee) who was the karta of his joint family till the 21st January, 1940, when there was a partition of the family property among the members. For the year 1939-40 the assessee was separately assessed as the karta of the family and in his individual capacity in respect of the income of the family and his own private income respectively, but this reference concerns only the assessment of the family income. Before the Income-tax Officer the assessee contended that the income which had accrued to the family without British India in 1938-39 should not be included in the assessment as he, and therefore the family, was "not ordinarily resident". The contention, though rejected by the Income-tax Officer, was upheld on appeal by the Appellate Assistant Commissioner as a result of which a fresh assessment was made on the 23rd August, 1940, excluding the foreign income

2. In the assessment proceedings for the succeeding year 1940-41 the assessee put forward the claim that a partition having taken place among the members of the family, no assessment on the family as such should be made for that year. This claim was rejected by the Income-tax Officer on the 23rd December, 1941, but the assessee again succeeded before the Appellate Assistant Commissioner who by his order dated the 17th August, 1942, accepted the partition put forward and directed an assessment to be made on that basis.

3. Meanwhile, the Income-tax Officer, having come into possession of materials showing that the family was "ordinarily resident" in British India in the year 1938-39, issued a notice dated the 6th July, 1942, under Section 34 of the Act addressed to "K. M.N.N. Swaminathan Chettiar, Sembanur " stating inter alia that "your income" for the year ending 31st March, 1939, had been both underassessed and assessed at too low a rate, and that it was therefore proposed to re-assess such income. The notice accordingly required the addressee to deliver " a return in the attached form of your total income and income assessable for the said year ending 31st March, 1940." In compliance with that notice which the assessee understood as relating to the family income, he made a return of the same income as before describing his "status" as "Hindu undivided family not ordinarily resident," and signing as " K.M.N.N. Swaminathan Chettiar, Manager, H.U.F." (i.e., Hindu undivided family). This was on the 29th August, 1942. It is important to note that, although he had by that time obtained an order from the Appellate Assistant Commissioner recording the partition in connection with the assessment proceedings for 1940-41, he raised no contention that by reason of that partition, the joint family had ceased to exist and could no longer be re-assessed for the year 1939-40 in respect of any part of its income in the previous year whether such income had escaped assessment or not. On the contrary, he made a return of the family income of that year describing himself as " Manager, Hindu Undivided Family " and repeating the previous claim that the family was not " ordinarily resident." The Income-tax Officer, however, rejected this claim and purported to make a supplemental assessment on the family " as resident and ordinarily resident," computing the tax payable at Rs. 13,466 and directing the sum to be "collected by adjustment of the refund due to the assessee for 1941-42 assessment."

4. From this order which was made on the 21st October, 1942, the assessee preferred an appeal to the Appellate Assistant Commissioner, and in his memorandum of grounds for the first time he raised the contention which has given rise to the present Reference, viz.:

The assessment supplementally made for the year 1939-40 on the ex-family which ceased to exist on 21st January, 1940, is not legally sustainable. When the notice under Section 34 was served on 8th July, 1942, there was no family in existence.

The Appellate Assistant Commissioner disallowed the contention. He recognised that the family had become divided "with effect from 8th Thai Pramathi (21st January, 1940) according to the Additional Appellate Assistant Commissioner's order in, I.R.A. No. 737 of 1941-42 dated 17th August, 1942," and that the proceedings under Section 34 were initiated " when, of course, the family had ceased to exist." But he held that the provisions of section 25-a were specially intended for making an assessment on a family after it had ceased to exist. He accordingly dismissed the appeal.

5. The assessee appealed to the Income-tax Appellate Tribunal, which, however, allowed the appeal, holding that Section 25-A was inapplicable to the case and also that no valid notice under Section 34 was served on the Hindu undivided family as the notice served on the assessee did not indicate whether it was proposed to assess him as karta of the family or in his individual capacity.

6. Thereupon the Commissioner of Income-tax, Madras, applied to the Appellate Tribunal under Section 66(I) to refer the questions of law arising out of its order to this Court, and the Tribunal has accordingly referred the following question for our decision:

Whether in the circumstances of the case, a notice for re-assessment of a Hindu undivided family under Section 34 of the Income-tax Act is valid on a member of the family, who was the karta, after the family had partitioned and disrupted, particularly when the said member was also taxed individually for the relevant assessment year?

7. It was not seriously disputed that the question thus formulated was intended to raise before us both the points decided by the Tribunal adversely to the Commissioner, viz., (I) whether Section 25-A is applicable to the assessment made under Section 34 in respect of the income received by the undivided family in 1938-39 after the disruption of such family by the partition of the 21st January, 1940, and (2) whether the notice of the 6th July, 1942, issued to the assessee without indicating in what capacity he was to be assessed under Section 34 could be regarded, in the circumstances of the case, as a valid notice to the family under that section.

8. Before discussing these questions, it will be convenient to set out the terms of Section 25-A and Section 34 so far as material here ;

Section 25-A :-" Where, at, the time of making an assessment under Section 23, it is claimed by or on behalf of any member of a Hindu family hitherto assessed as undivided that a partition has taken place among the members of such family, the Income-tax Officer shall make such inquiry thereinto as he may think fit, and, if he is satisfied.... that the joint family property has been partitioned among the various members or groups of members in definite portions he shall record an order to that effect:

Provided that no such order shall be recorded until notices of the 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 (i) of section 14, be liable for a share of the tax on the income so assessed according to the portion of the joint family property allotted to him or it ;

and the Income-tax Officer shall make assessments accordingly on the various members and groups of members in accordance with the provisions of section 23:

Provided that all the members and groups of members whose joint family property has been partitioned shall be liable jointly and severally for the tax assessed on the total income received by or on behalf of the joint family as such.

(3) Where such an order has not been passed in respect of a Hindu family hitherto assessed as undivided such family shall be deemed, for the purposes of this Act, to continue to be a Hindu undivided family.

Section 34. (I) If in consequence of definite information which has come into his possession he Income-tax Officer discovers that income, profits or gains chargeable to income-tax have escaped assessment in any year, or have been under-assessed, or have been assessed at too low a rate, or have been the subject of excessive relief under this Act, the Income-tax Officer may, in any case in which he has reason to believe that the assessee has concealed the particulars of his income or deliberately furnished inaccurate particulars thereof at any time within eight years, and in any other case at any time within four years of the end of that year, serve on the person liable to pay tax on such income, profits or gains, or, in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may he included in a notice under Sub-section (2) of Section 22 and may proceed to assess or re-assess 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.

9. As pointed out by the Privy Council in Sunder Singh Majithia v. Commissioner of Income-tax, United and Central Provinces (1942) 2 M.L J. 761 : L.R. 69 I.A. 119 : I.L.R. (1943) All. 69 (p.c.), section 25-a is directed to the difficulty which arose when an undivided family had received income in the year of account but was no longer in existence as such at the time of assessment, and it solved the difficulty by providing that, if the family property had been partitioned among the members, the assessment should be made notwithstanding Section 14(I) on the individual or group in respect of his or its share of the income received by the family as if no partition had been made, though all the members are to be jointly or severally liable for the whole tax. If, on the other hand, there was no partition of the family property, the family should be deemed to continue for purposes of assessment notwithstanding that it has ceased to exist by a division of status among the coparceners. Thus, in the normal case of an assessment of the income made by a Hindu undivided family in the year of account the disruption of the family before such income falls to be assessed in the next year becomes immaterial, and the assessment has to be made as if the family is still in existence. But what is the position when, several years after the family had come to an end, any portion of its income is found to have escaped assessment and such income is sought to be assessed under the special provisions of Section 34? Does the fiction of continued existence of the family imported by Section 25-A avail the income-tax authorities in making such supplemental assessment ? I am of opinion that the concluding words of Section 34, Sub-section (I), viz.,

" the provisions of this Act shall so far as may be, apply accordingly as if the notice were a notice under that sub-section,"
are apt to attract the provisions of section 25-a to assessments made under Section 34.

10. Mr. Viswanatha Aiyar argued on behalf of the assessee that Section 25-A could have no application to this case as it contemplated only cases where " at the time of making an assessment under Section 23 " a claim is put forward that a partition has taken place among the members of such family, whereas not only was the assessment now in question made under Section 34, but when the family was originally assessed under Section 23 on the 30th November, 1939, no claim was made or indeed could be made that a partition had taken place, as the partition in the family was only in January, 1940. This contention found favour with the Income-tax Appellate Tribunal which observed:

For the year of assessment in question, i.e., 1939-40 it is nobody's case that any claim under Section 25-A was made by any member of the Hindu undivided family. That being so we do not think that Section 25-A has any application to this case.

11. On the other hand, Mr. Rama Rao Saheb for the Commissioner suggested that Sub-section (3) of Section 25-A could operate independently of Sub-sections (I) and (2) and as the order of the Appellate Assistant Commissioner accepting the partition was passed only on the 17th August, 1942, the family which had till then been assessed as undivided must be deemed to have continued to be undivided on the 6th July, 1942, when the notice under Section 34 was issued to the assessee, so that the assessment made on that basis was in order. We are unable to agree with either of these views of the matter. The contention on behalf of the Commissioner assumes that the words

"Where such an order has not been passed in respect of a Hindu undivided family hitherto assessed as undivided"
cover every case of a joint family sought to be assessed in respect of which the income-tax authorities have not till then recorded an order that a partition has taken place, and that until the date of such an order all such families should be dealt with as undivided. We do not think that this is a correct view of Sub-section (3). As pointed out by their Lordships in Sundar Singh Majithia v. Commissioner of Income-tax, United and Central Provinces ( 1942) 2 M.L.J. 761 : L.R. 69 I.A. 119 : I.L.R. (1943) All. 69 (p.c.) 29 section 25-a relates only to Hindu undivided families which have been disrupted, and the opening words of Sub-section (3) quoted above refer to cases where a claim that a partition had taken place has been made under Sub-section (I) and such claim has been rejected by the Income-tax Officer. Thus Sub-section (3) is complementary to Sub-section (2) and both deal with cases falling under Sub-section (I). Nor is it correct to say that the family should be deemed to continue undivided till the date of the Income-tax Officer's order under the section. Where an order is made accepting the partition alleged by the assessee the family must be regarded as having become disrupted on the date of partition as put forward by the assessee. In the present case, therefore, when the notice under Section 34 was issued to the assessee on the 6th July, 1942, the family must be taken to have ceased to exist though the partition which was put forward as having taken place on the 21st January, 1940, was accepted only on the 17th August, 1942.

12. This is, however, not to say that the assessee's contention is correct. While it is true that Sub-section (3) of Section 25-A should be read with Sub-sections (I) and (2), it does not follow that the section is rendered inapplicable, either because of its opening words referring to an assessment under Section 23, or because no claim as to a partition having taken place was put forward at the time of the original assessment on the family for 1939-40, to the assessment now made under Section 34. By virtue of the concluding words of Sub-section (1) of the latter section making all the provisions of the Act, so far as may be, applicable to supplementary assessments under that section these assessments also have to be made under and in accordance with Section 23. In the course of such an assessment proceeding in the present case, a claim that a partition had taken place was put forward, though, for the first time before the Appellate Assistant Commissioner who, instead of making a further enquiry into the matter accepted and acted upon the order of the 17th August, 1942, recording the partition in the assessment proceedings for 1940-41. The Appellate Assistant Commissioner in his order dated 11th February, 1943, has made it quite clear that he sustained the assessment under Sub-section (2) of Section 25-A read with Section 34 on the footing that the family had been disrupted on the 21st January, 1940. His view of the position is, in my opinion, correct.

13. It was said that the Income-tax Officer did not make the assessment in accordance with Sub-section (2) of Section 25-A as he did not make a separate assessment on the various members of the family as contemplated in that sub-section, but merely assessed the family as a whole. But this was because the assessee did not put forward before that Officer the claim that there had been a partition in the family. When such a claim was put forward for the first time in the appeal, the Appellate Assistant Commissioner sustained the assessment under Sub-section (2) of Section 25-A without remanding the case to the Income-tax Officer for making a fresh assessment, because, presumably, it would make no difference in practice in the peculiar circumstances of this case whether the assessment was made on the family as an entity through its karta or whether it.was made on the individual members or groups on the footing of its previous disruption; for even an assessment on the latter footing has to be made "as if no partition had taken place," and although Sub-section (2) provides that the assessment should be made on the various members or groups of members it holds all the members jointly and severally liable for the whole tax so that any one of them could be served with a notice under Section 34 as such notice is required to be served on " the person liable to pay the tax." Thus even if the Income-tax Officer had in the first instance proceeded under Sub-section (2) of Section 25-A read with Section 34 the result would practically have been the same, more especially as no demand notices for payment of the tax had to be issued in this case, the additional tax imposed having been directed to be adjusted towards the refund due to the family in connection with 1941-42 assessment.

14. The assessee's next objection regarding the validity of the notice dated the 6th July, 1942, is equally untenable. It was no doubt addressed, as already stated, to the assessee without any indication as to whether it was his personal assessment or the assessment made on him as the Karta of the family for the year 1939-40 that was proposed to be reopened; but he understood the notice as calling upon him to make a fresh return only in respect of the family income and submitted a return of such income as the Karta of the family. He made no complaint, until the matter reached the Income-tax Appellate Tribunal, as to any irregularity in the issue of the notice. As has been already stated, even on the footing that the family had become disrupted in January, 1940, the service of notice under Section 34 on the assessee was perfectly in order as he was a " person liable to pay " the whole of the tax imposed under the supplementary assessment. In such circumstances, I see no substance in the objection that the notice of the 6th July, 1942, was not a valid notice under Section 34.

15. Even assuming that the notice did not give the correct particulars as to the person or income sought to be assessed, the irregularity must, in the circumstances of this case, be deemed to have been waived by the assessee. In a similar case in Gopaldas Purushotamdas v. Commissioner of Income-tax I.L.R. 1940 All. 841, where the assessee was served with a notice under Section 22(2) of the Act which did not specify in what capacity he was called upon to make a return but he made a return as the Manager of the family without asking for an elucidation from the Income-tax authorities, it was held that the assessee could not afterwards object to the legality of the notice. The Court observed:

The contention of the assessee is that he did not know exactly as to which capacity of his was under investigation and therefore the notice was illegal. If the assessee was in doubt he might well have asked for elucidation from the Income-tax authorities.... It is not possible therefore to hold that the notice issued by the Department was invalid or illegal.

See also Maharajadhiraj of Patiala v. The Commissioner of Income-tax (Central) Bombay I.L.R. 1943 Bom. 224 and Tarak Nath, Bagchi v. Commissioner of Income-tax, Bengal (1946) I.T.R. 319.

16. For the reasons indicated, the answer to the question referred to us should be in the affirmative. The assessee will pay the costs of the Commissioner, Rs. 250.

Frederick William Gentle, C.J.

17. I agree and have nothing to add.

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