# COMMISSIONER OF INCOME-TAX, BOMBAY v. M/S. SHREE GOVERDHAN LTD. BOMBAY January 9, 1968

- **Citation:** [1968] 2 S.C.R. 731
- **Court:** Supreme Court of India
- **Decided:** 1968-01-09
- **Bench:** J. C. Shah, V. Ramaswami, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commissioner-of-income-tax-bombay-v-m-s-shree-goverdhan-ltd-bombay-january-9-4203
- **Pages:** 9

## Headnote

731
Indian Income-tax Act, ,1922, ss. 2(11) ood 23A-Accounting ,vear of
company ending on September 30, every year-Colnpany a partner in a
firm-Accounting periods of firm for 1951-52 A.Y. ending on November
30, 1950 and March 31, 1951-Company's annual general meeting held
on May 17, 1951-Company's shore of income from partnership whether
to be Included in its income for 1951-52 A.Y. for purpose of s. 23A.
The assessee-a public limited company, entered into a partnership
on April 20, 1950 with another firm, and thus had 1wo sources of income,
(i) from its own business and (2) from the shares of the partnership
business.
The Income-tax Officer included the shares of profit of the
assessee from the partnership business up to November 30, 1950 and up to
March 31, 1951 in the assessment of the assessment year 1951-52. The
assessee objected, contending that this income accrued after the ~ccounting
year of the assessee which ended on September 30, 1950, and at i~ general
m<:eting held on May 17, 1951, the assessee could not be expectetl to
declare a dividend for the assessment year 1951-52 which related to the
accounting year ending on September 30, 1950 out of its profits that
accrued during subsequ-ent accounting period.
Tbe Revenue maintained'
the assessment. which, on reference, the High Court answered in favour
of the assessee. In appeal, this Court.
HELD : The assessable income of the assessee included the share of
the assessee's profits in the partnership for the purpose of app1ication of
s. 23A of the Income-tax Act, 1922 so far as the a.Sessment year 1951-52
was concerned.
Under s. 2(11) of the Act an assessee may have different previous
years in respect of different sources of income and under the scheme of
the Act the income of the varying previous years from
the different
'oOurces should be lumped together to arrive at the total income of the
assessee. The provisions of ·s. 2(11) of the Act make it clear that, except
in cases where a previous year is determined by the Department under
cl. (b), the ·varying previous years must all necessarily end with or within
the financial years next preceding the assessment year.
In the present
case, the previous year so far as the personal business of the assessee was
cqncerned, was the previous year ended on Septen;i.ber 30, 1950, but with
regard to the income of the partnership the previous year was the period
between November 30, · 1950 and March 31, 1951 when the accounts of
the partnership were made up and closed.
The provisions of s. 23 (I)
must be construed in the context of s. 2(11) of the Act arid the expression
'previous year' of the company in s. 23A(I) must be interpreted as meaning two previous years where the company carries on two different businesses with different sources of income for which there are separate
accounting periods. [736 F-737 BJ
·
The annual general meeting of the assessee was held on May 17, 1951
after the close of the accounting year of the firm. It is true that the
actual profits of the -assessee from its partnership busin~s were\ ascertained
after the close of the accounting period i.e., March 31, 19~. -. But the
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732
SUPREME COURT REPORTS
(1968] 2 S.C.R.
income may accrue to an a-sscsscc wi1hout actual receipt of the same and
if the asscssee acquires a rtght to rcc;eivc the income. the income can be
6aid to have accrued to him though it may be rccciveJ later on on
it~
being ascertained.
The le_gal positior:i is !hat a liab_ility dcpcn~ing upon a
contingency is not a debt 1n praesenll or 1n futuro till the contingency ~ap
pens.
But if it is a debt the fact that_ the a~ou~~ h~s to ~ ascertained
does not make it any the less a debt if the ltabtllly 1s certain and what
rem:tins is only a quantification of the amount :
Dehirum in praesenJi,
Solve11dum in futuro. 1737 E-H)
Commissioner of Inland Re\·enue v. Gardner hlountain &. D' Ambrum~nil Ltd. 29 T.C. 69, applied.
C!\'IL APPELLATE JuRISDICTION:
Civil Appeal No. 17 of
1967.
Appeal by special leave fro

## Text

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COMMISSIONER OF INCOME-TAX, BOMBAY
v.
M/S. SHREE GOVERDHAN LTD. BOMBAY
January 9, 1968.
(J. C. SHAH, V. RAMASWAMI AND V. BHARGAVA, JJ.]
731
Indian Income-tax Act, ,1922, ss. 2(11) ood 23A-Accounting ,vear of
company ending on September 30, every year-Colnpany a partner in a
firm-Accounting periods of firm for 1951-52 A.Y. ending on November
30, 1950 and March 31, 1951-Company's annual general meeting held
on May 17, 1951-Company's shore of income from partnership whether
to be Included in its income for 1951-52 A.Y. for purpose of s. 23A.
The assessee-a public limited company, entered into a partnership
on April 20, 1950 with another firm, and thus had 1wo sources of income,
(i) from its own business and (2) from the shares of the partnership
business.
The Income-tax Officer included the shares of profit of the
assessee from the partnership business up to November 30, 1950 and up to
March 31, 1951 in the assessment of the assessment year 1951-52. The
assessee objected, contending that this income accrued after the ~ccounting
year of the assessee which ended on September 30, 1950, and at i~ general
m<:eting held on May 17, 1951, the assessee could not be expectetl to
declare a dividend for the assessment year 1951-52 which related to the
accounting year ending on September 30, 1950 out of its profits that
accrued during subsequ-ent accounting period.
Tbe Revenue maintained'
the assessment. which, on reference, the High Court answered in favour
of the assessee. In appeal, this Court.
HELD : The assessable income of the assessee included the share of
the assessee's profits in the partnership for the purpose of app1ication of
s. 23A of the Income-tax Act, 1922 so far as the a.Sessment year 1951-52
was concerned.
Under s. 2(11) of the Act an assessee may have different previous
years in respect of different sources of income and under the scheme of
the Act the income of the varying previous years from
the different
'oOurces should be lumped together to arrive at the total income of the
assessee. The provisions of ·s. 2(11) of the Act make it clear that, except
in cases where a previous year is determined by the Department under
cl. (b), the ·varying previous years must all necessarily end with or within
the financial years next preceding the assessment year.
In the present
case, the previous year so far as the personal business of the assessee was
cqncerned, was the previous year ended on Septen;i.ber 30, 1950, but with
regard to the income of the partnership the previous year was the period
between November 30, · 1950 and March 31, 1951 when the accounts of
the partnership were made up and closed.
The provisions of s. 23 (I)
must be construed in the context of s. 2(11) of the Act arid the expression
'previous year' of the company in s. 23A(I) must be interpreted as meaning two previous years where the company carries on two different businesses with different sources of income for which there are separate
accounting periods. [736 F-737 BJ
·
The annual general meeting of the assessee was held on May 17, 1951
after the close of the accounting year of the firm. It is true that the
actual profits of the -assessee from its partnership busin~s were\ ascertained
after the close of the accounting period i.e., March 31, 19~. -. But the
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732
SUPREME COURT REPORTS
(1968] 2 S.C.R.
income may accrue to an a-sscsscc wi1hout actual receipt of the same and
if the asscssee acquires a rtght to rcc;eivc the income. the income can be
6aid to have accrued to him though it may be rccciveJ later on on
it~
being ascertained.
The le_gal positior:i is !hat a liab_ility dcpcn~ing upon a
contingency is not a debt 1n praesenll or 1n futuro till the contingency ~ap
pens.
But if it is a debt the fact that_ the a~ou~~ h~s to ~ ascertained
does not make it any the less a debt if the ltabtllly 1s certain and what
rem:tins is only a quantification of the amount :
Dehirum in praesenJi,
Solve11dum in futuro. 1737 E-H)
Commissioner of Inland Re\·enue v. Gardner hlountain &. D' Ambrum~nil Ltd. 29 T.C. 69, applied.
C!\'IL APPELLATE JuRISDICTION:
Civil Appeal No. 17 of
1967.
Appeal by special leave from the judgment and order dated
Seplembcr I 8, I 962 of the Bombay High Court in Income-tax
Refctcnce No. 34 of I 96 I.
C. K. Daphtary, Attorney-Grneral, T. A. Ramachandrar. and
R. N. Sachthey, for 1he appellant.
Radhey Lal Aggarwal, Bishambar Lal and H. K. Puri, for the
respondent.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave, on
behalf of the Commissioner of Income-tax against the judgment
of the Bombay High Court dated September 18, 1962 in Income>
Tax Reference No. 34 of 1961 whereby the High Court held
thdt the order passed against the respondent, hereinafter referred lo as the 'as-;essee' under s. 23A of !he Indian Income Tax
Ac1, 1922 (hereinafter referred to as the "Act") was not justified
and v:ilid for the :issessment year 1951-52.
The asscssee is a public limited company registered under the
Indian Companies Act.
Its share capital con:;ists
of
50,000
sh:ires subscrib~d and paid up. Out of these shares, 47,493 are
hc!c.l by Shree R:ighunath Investment Trust
Ltd., u
compan~·
incorr"irated as a privale company under the laws of Ja•.nmu
and Kashmir (hereinafter rderred to as "The Jammu Co.")
an'.l having ils registered office there.
Out of
the
remaining
2,507 shares, 2,500 shares were held by another private limit~d
company incorporated in India and having its registered office
in New Delhi and ihe remaining 7 shares were -held by seven
individuals.
The shares of the assesse<: are not quoted on the
Stock Exchange any where in India.
There is nolhing, however.
in ils Memorandum and Articles of Association placing any restric1ion on the free transfer of its shares. The assessce entered
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C.I.T. v. GOVERDHAN LTD, (Ramaswami, J.)
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into a partnership on April 20, 1950 with a firm call~ 'The
India Steel Syndicate'.
There was a reconstitution of this firm
on December l, 1950. The shares of profit of the assessee from
this firm (which was registered under s. 26-A of the Act) as up
to November 30, 1950 and upto
March 31, 1951
totalling
Rs. !70,895/- were included in the assessment of the assessee for
the assessment year 1951.52.
During the ·assessment years 1950-51 and 1951-52, for which
the previous years ended on September 30, 1949 and September
30, 1950, the Income Tax Officer determined-the assessable income
of the assessee at Rs. 60,350 and Rs. 93,884 respectively.
After deduction of the taxes payable, the balance was Rs. 35;834
in the first year and Rs. 53,103 in the second year.
As the
assessee had not declared any dividend at its Annual General
Meetings during either of the aforesaid two years or within six
months thereafter, the Income Tax Officer issued notices to the
assessee. to show cause why an order under s. 23-A(l) of the
Act should not be passed for the two years, The assessee, however, contended that s. 23-A was not applicable inasmuch as the
public were substantially internsted within the meaning of the
Explanation appended to the third proviso to s. 23-A(l). Overruling this contention the Income Tax Officer made an order
under s. 23-A against the assessee in respect of the undistributed profits for the said two years.
Again~t these orders the asse·
ssee appealed to the Appellate Assistant Commissioner. A further ground was taken in the appeal that the order under s. 23-A
was unwarranted so far as assessinent year 1950-51
was
concerned inasmuch as the assessable profits included a sum of
Rs. 70,895/- being tbe share of the assessee's income which arose
in its partnership with the Indian Steel Syndicate as
up
to
November 30, 1950 and March 31, 1951, and that the income
accrued ·after the accounting year of the assessee which ended
on September 30, 1950. The Appellate Assistant Commissioner
dismissed the appeals and his order was affirmed by the Appe·
!late Tr~bunal on June 28, 1959 for both the assessment years.
At the instance of the assessee the Appellate Tribunal stated a,
case to the High Court under s. 66(1) of the Act on the followin"
~~cl~:
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· "Whether the order passed against the assessee for
assessment years 1950-51 and 1951-52 under section
23-A are justified ancl valid ?"
By its judgment dated September 18, 1962, the High Court answered the question in so far as it pertained to assessment year
1950-51 in the affirmative; and in so far as it pertained to assessment year 1951-52 in the negative anCJ against the appellant.
L3 Sup. CT/68--'3
734
SUPllEMl!· COURT REPORTS
[1968) 2 S.c.R.
Section 23-A of the Act, as it stood before its amendment
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by the Finance Act, 1955 was to the following effect :
"23-A. Power to assess individual members of
cenain companies.-( I)
Where the Income-tax Officer is satisfied that in respect of any previous year the
profits and gains distributed as dividends by any company up to the end of the sixth month after its accounts
for that previous year are laid before the company in
general meeting are less than sixty per cent of the
assessable incwne of the company of that
previous
year, as reduced by the amount of income-tax and
super-tax payable by the company in respect thereof
he shall, unless he is satisfied that having regard to
losses incurred by the company in earlier years or to
the smallness of the profit made, the payment of a dividend or a larger dividend than that declared would
be unreasonable, make with the previous approval of
the Inspecting Assistant Commissioner an order in
writing that the undistributed portion of the assessable
income of the company of that previous year as computed for income-tax purposes and reduced by the
amount of income-tax and super-tax payable by the
company in respect thereof shall be deemed to have
been distributed as dividends amongst the shareholders
as at the date of the general meeting aforesaid, and
thereupon the proportionate share thereof of each
shareholder shall be included in the total income of
such shareholder for the purpose of assessing his total
income:
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Provided
that when
the reserves representing
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accumulations of pasi profits which have not been the
subject of an order under this sub-section exceed the
paid up capital of the company together with any
Joan capital which is the .property of the shareholders,
or the actual cost of the fixed assets of the company·
whichever of these is greater. this section shall apply
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a~ if instead of the words 'sixty per cent' the words
'one hundred per cent' were substituted :
Provided further that no order under this sul>-section shall be made where the comoany has distributed
not less than fifty-five per cent of the assessable income
of the company as reduced by the amount of incometax and super-tax payable by the company in respect
thereof, unless the company, on receipt of a notice
from the Income-tax Officer that he proposes to make
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C.I.T. v. GOVERDHAN LTD. (Ramaswami, J.)
735
such an order, fails to make within three months of
th.: receipt of such notice a further distribution of its
profits and gains so that the total distribution made is
not less than sixty per cent of the assessable income of
the company of the previous year concerned as reduced by the amount of income-tax
and
super-tax
payable by the company in respect thereof :
Provided further that this sub-section
shall
not
apply to any company in whicl! the public .are substantially interested or to a subsidiary company of such
a company if the whole of the share capital of such
subsidiary company is held by the parent company or
by the nominees thereof. . . . . . . . . . . . . . . . . . . . . . . . "
Section 2 ( 11 ) of the Act states :
"2.
In this Act, unless there is anything repugnant in the subject or context,-
( 11) 'previous year' means-
( i) in respect of any separate source of income, profits
and gains--
(a) the twelve months ending on the 31st day of
March next preceding the year for which the assessment is to be made, or, if the accounts of the assessee
have been made up to a date within the said twelve
months in respect of a year ending on any date other
than the said 31st day of March, then, at the option
of the assessee, the year ending on the date to which
his accounts have been so made up : ,
Provided that where in respect
of
a particular
source of income, profits and gains an assessee has
once been assessed, or where in respect of a business,
profession or vocation newly set up an assessee has
exercised the option under sub-clause
( c), he shall
not, in respect of that source or, as the case may be,
business, profession or vocation, exercise the
option
given by this sub-clause so as to vary the meaning of
the expression 'previous year' as then applicable to him
except with the consent of the Income-tax Officer and
upon such . conditions. as the Income-tax Officer may
think fit to impose; or .
.... .... .... ....... ...... .... .... ... .
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(ii)
in respect of the share of the income, profits
and gains of a firm where the assessee is a partner
in the firm and the firm has been asses5ed as such, the
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736
SUPR.EME COURT REPOl.TS
[1968] 2 S.C.R.
period as detennined for the assessment of the income,
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profits and gains of the firm;"
On behalf of the appellant the Attorney-General
put
forward the argument that the High" Coun was in error in holding
that the sum of Rs .. 70,895 which was the assessee's share
of income in its pannership with the
Indian Steel
Syndicate
should be left out of consideration so far as the assessment year
1951-52 was concerned.
It was pointed out that the assessee
had two different sources of income: ( 1) from its own business,
and (2) from the share of the pannership business with
the
Indian Steel Syndicate and that under s. 2 ( 11) of the Act the
assessee must be deemed to have two previous years with regard
to two different sources of income. It was therefore argued that
the High Coun was in error in holding that the income from
the pannership could not be included in the assessment income
of the assessee for tlie assessment year 1951-52.
On behlllf of
the assessu the conll'llly view-point was put forward
by
Mr.
Radhey Lal Aggarwal. It was submitted that the sum of
Rs. 70,895 related to the share of the profits of the assessee from
ou1 of the pannership for the period between November '30,
1950 to March 31, 1951 and this period was after the accounting year of the assessee which ended on September 30, 1950.
It was contended that at its general meeting held on May 17,
I 951 the assessee could not be expected to declare a dividend
for the assessment year 1951-52 which related to the accounting
year ending on September 30, 1950 out of its profits that
accrued durir.;; the subsequent accounting period. In our opinion,
the argument put forward by the Attorney-General on behalf of
the appellant i' well-founded and must be accepted as correct. It
is true that the assessee had prepared a balance sheet on the
basis that its accounting year ended on September 30, 1950. It is,
however. admitted that the assessee had two sources of income:
( J) from its own business, and (2) from the share of the partnership business with Indian Steel Syndicate.
Under s. 2(11)
of the Act an assessee may have different previous years in respect of different sources of income and under the scheme of the
Act the income of the varying previous years from the different
sources should be lumped together to arrive at the total income
of the assessee.
The provisions of s. 2 (I I) of the Act make
it clear thai, except in cases where a previous year is determined
by the Department under cl. (b), the varying previous years
must all nec~arily end with or within the financial year next
preceding the as.~essment year. In the present case, the previous
year so far as the personal business of the assessee was concerned,
was the previous year ended on September 30, 1950, but with
regard to the income of the pannership the previous year was
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C.I.T. v. GOVERDHAN LTD. (Ramaswami, J.)
737
the period between November 30, 1950 and March 31, 1951
when the accounts of the partnership were made up and closed.
In our opinion, the provisions of s. 23A ( 1) must be construed
in the context of s. 2 ( 11) of the Act and the expression 'pr.:viqus
year' of the company in s. 23A ( 1) must be interpreted as
meaning two previous y.ears where the company carries on two
different businesses with two different sources of
income for
which there are separate accounting periods.
It follows therefore in the. present case that the Income Tax Offic~r wa,s right in
holding that the assessable income of the company includ~d the
share. of the assessee's profits in its partnership with the Indian
Steel Syndicate for the purpose of application of s. 23A of the
Act so far as the a~sessment year 1951-52 was concerend.
The ·argument was, however, stressed on behalf of the res·
pondent that in any event the share of the profit of the a.~ses~ee
froru the partnership business for the period from October 1,
1950 to March 31, 1951 was not known to the assessee before
its annual gene1al meeting on May 17, 1951.
It was pointtcl
out that for the first time the Income Tax Officer was intimated
on August 11, 1953 that the share of the profit cf the assessce
in the partnership was to the extent of Rs. 70,895 and should
be included· in its asse~sment. After receipt of the intimatioo
the Income Tax Officer rectified the original assessment made on
February 29, 1952 and included the said amount of Rs. 70,895.
In our opinion, there is no warrant for the argument put
forward on behalf of the respondent. It is conceded in this
case that the aTtnual general meeting of the assessee was held
on May 17, 1951 after the close of the accounti11g year of the
Indian Steel Syndicate.
It is true that the actual profits of the
assessee from its partnership busines; were ascertained after the
close of the accounting period, ·i.e., March :'11, 1951. lt is,
however, well-established that the income may accrue to an
asses,ee without actual receipt of the same and if the asses.<ee
acquires a right to receive the income, the income can be said
to have accrued to him though it may be received later on
on its being ascertained. The legal position is that a liability
depending upon a contingency is not a debt in praesenti or i'I
futuro till the contingency happens.
But if it is a debt the fact
that the amount has to be ascertained does not make it any the
less a debt if the liability is certain and what remains is only
a quantiCTcation of the amount : debitum in praese11t1, solvendum
in futuro.
Reference may be made in this connection to the
decision in Commissioners of Inland Revenue v. Gardner Mountain & D' Ambrumenil, Ltd.(') The assessee in that case carried
on the business of under-writing agents, and entered into agree-
(!) 29 T.<;. 69.
738
SUP.REMS COURT REPORTS
[1%8) 2 S.C.lt.
ments with certain underwriters at Lloyds under which it was
entitled to receive as remuneration for its services in conducting
the agency, commissions on the net profits of each year's underwriting.
The agreements provided that "accounts should
be
kept for the period ending 31st December in each year and that
each such account shall be made up and balanced at the end of the
second clear year from the expiration of the period or year to
which it relates and the amount then remaining to the credit of
the account shall be taken to represent the amount of the net
profit of the period or year to which it relates and the commiS!;:on
payable to the company shall be calculated and paid therwu."
The accounts for the underwriting done in the calendar ) <!a!
1936 were made up at the end of 193 8 and the questi.on t bat
arose was whether the asscssee was liable to additional ass~-ss
ment in respect of the commission on underwriters' profits from
the policies underwritten in calendar year 1936 in the year in
which the policies were underwritten or in the year when the
accounts were thus made up.
The assessee contended that the
contracts into which it entered were executory contracts. under
which its services were not completed or paid for, as regards
commission, until the conclusion of the relevant account; the
profit in the form of commission was not ascertainable or earned,
and did not arise, until that time and the additional assessment
which was made in the year in which the policies were underwritten should accordingly be discharged.
The Special Com111issioners allowed the assessec's contention and discharged the
additional assessment.
The decision of the Special Commissioners was confirmed on appeal by Macnaghten, J. in the King's
Bench Division of the High Court. The Court of Appeal however reversed this decision and a further appeal was taken by
lhe assessee to the House of Lords.
The House of Lords held
ibat on the true construction of the agreements, the commissions
in question were earned by the assessee in the year in which the
policies were underwrirten, and must be brought into account
accordingly and confirmed the decision of the Court of Appeal.
At page 96 of the Report Lord Wright observed :
"I agree with the Court of Appeal
in
thinking
that the necessary conclusion from that must be that
the right to the commission is treated as a vest~.d right
which has accrued at the time when the risk was underwritten.
It has then been earned, though the profits
resulting from the insurance cannot be then ascertained, but in practice are not ascertained until the end of
two years beyond the date of underwriting. The right
is vested, though ii!; valuation is postponed, and is not
merely postponed but depends on all the contingencies
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which are· inevitable in any insurance risk
losses
whic~ may or may not happen, returns of
p~emium,
prenuums to be arranged for additional risks, reinsurance, and the whole catalogue of uncertain future factors.
All these have to be brought into account
according to ordinary commercial practice and understanding. · But the delays and difficulties which there
may be in any particular case, however they may affect ·
the profit do not affect the right for what it eventually
proves to be worth."
Lord. Simonds also stated at page 110 of the Report as follows_:
"It i.s clear to me that the commission is
wholly
earned in year, 1 in respect of the profits of that year's
underwriting. If so, I should have thought that it was
not arguable that that commission did not accrue for
Income Tax purposes in that same year, though it was
not ascertainable until later."
It is admitted in the present case that the Indian Steel Syndicate
closed the accounts of the partnership for the first time for the
first set of partners on November 30, 1950 and for the other set
of partners on March 31, 1951 and the assessee as a partner was
therefore entitled to the share of the profits as on the last day
of the accounting period of the partnership
i.e.,
March 31,
1951.
For these reasons we hold that the income Tax Officer was
right in holding that the amount of Rs. 70,895/- which was the
share of the assessee's income from its partnership 'with Indian
Steel Syndicate for the period ending March 31, 1951 should
be included in the assessable profits of the company for the
assessment year 1951-52 and should be treated as part of the
distributable profits of the company for the purpose of s. 23-A
( 1 ) of the Act. In other words, the order made by the Income
Tax Officer against the assessee under s. 23-A of the Act for the
assessment year 1951-52 must be held to be justified and valid
and the question of law referred by the
Appellate Tribunal
must be answered against the assessee and in favour of the
Income Tax Department for the year 1951-52 also. We accordingly set aside the judgment of the Bombay High Court dated
September 18, 1962 so far as the assessment year 1951-52 is.
concerned and allow this appeal with costs.
Y.P.
Appeal allowed.