# MALEGAON ELECTRICITY CO. (P) LTD v. THE COMMISSIONER OF INCOME-TAX, BOMBAY

- **Citation:** [1971] 1 S.C.R. 761
- **Court:** Supreme Court of India
- **Decided:** 1970-08-11
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/malegaon-electricity-co-p-ltd-v-the-commissioner-of-income-tax-bombay-5281
- **Pages:** 8

## Headnote

Indian Jncome·tax A<·t, 1922, s. 10(2) (vii) a11d s. 34-Full disclosure
of material facts to Income-tax Officer within meaning of s. 34(1) (a),
what amounts to-Failure to show excess of price for which assets sold in
return and further failure to show written down value amounts to failure
to disclose fucts--Tribunal must determine whether any profits are made
under section l 0( 2 )( rii)-Without this being first determined the High
Court in reference under section 66( 1) cannot decide whether there has
heen failure to disclo.1e material facts,
The appellant was a private limited company. The business and assets
of the appellant 1,.vere purchased by another company
under agreement
dated September 9, 1951.
l n the original proceedings for assessment to
income-tax. for the assessment year 1952-53 the appellant brought the
transactions of sale to the notice of the Inco1ne-tax. Officer and placed before hin1 certain relevant documents and also furnished the information
asked for.
Setting off the
unabsorbed
depreciation
brought forward
against tht: income as found by him the Incomi.:-tax office determined the
income of the appellant for the said assessment year at 'NIL'. Sometime
later the successor-in-.office of the said Income-tax Officer issued a notice
under s. 34(1 l(a) of the Indian Income-tax Act, 1912 to the appellant
a'fter obtaining sanction from the Commissioner of Income-tax.
He held
that the appellant had not disclosed its profit under s. 10(2) (vii) of the
Act resulting from the sale of its assets and detern1ining the said profits at
Rs. 4,88.386, he made a re-assessment. The Appellate Assistant Commissioner confirn1ed the order.
The Tribunal. ho~·ever, held that the material facts were all disclosed to the Income-tax Officer at the time of the
origirial assessment and a mere change of opinion did not justify proceedings under s. 34(1 )(a). At the request of the Commissioner of Incometax the Tribunal referred to the High Court the questions (i) whether in
the circumstances of the case it could be held that in the original assessment proceedings the assessee had made a full disclosure of material particulars; and (ii) whether having initiated prooeedings Wlder s. 34( I) (a)
the Income-tax Officer could have later relied on s. 34(1) (b).
HELD : The law casts a duty on the assessee to 'disclose fullv
and
truly all material facts necessary for his assessment' for the relevarlt year.
Further t.he explanation to section 34(1) says that mere production before
the Income-tax Officer of account books .or other evidence from
which
material facts with due diligence could hav'e been discovered bv the Income-tax Officer will not amount to disclosure within the meaning of the
section. In the present case the price realised at the sale in excess of the
written down value of the assets sold, had not been included as profits in
the return submitted bv the assessee. It had also not shown the same in
•ection 'D' of Part I of the return. The assessee had not shown either in
its return or in any of the documents submitted to the Income-tax Officer,
the written down value of the assets sold. This failure amounted to
a
failure on the part of the assessee to disclose fully and truly the materiaf
762
SUPREME COURT REPORTS
[I 971] I S.C.R.
facts necessary for its assessment.
From the cryptic
statement ot
the
Income-tax Officer in the original assessment order that 'no adjustment is
necessary• the Tribunal was not justified in drawing the interence that the
Income-tax Officer had considered all the facts. [766 F-G]
V.D.M.RM.M.RM. Muthiah Chettiar v. Commissioner of Income-tax,
Madras, 74 l.T.R. 183, held inapplicable.
CalcuHa Discount Co. Ltd. v. lncome-t<x Officer, Companies Distt I,
Calcutta, 41 J.T.R. 191. distinguished.
The High Court should not have and this Court would not answer
the questions referred under s. 66(1) of the Act because those questions
could not be answered without first deciding whether a part of the sale
price received b

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761
MALEGAON ELECTRICITY CO. (P) LTD.
v
THE COMMISSIONER OF INCOME-TAX, BOMBAY
August 11, 1970
[J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.]
Indian Jncome·tax A<·t, 1922, s. 10(2) (vii) a11d s. 34-Full disclosure
of material facts to Income-tax Officer within meaning of s. 34(1) (a),
what amounts to-Failure to show excess of price for which assets sold in
return and further failure to show written down value amounts to failure
to disclose fucts--Tribunal must determine whether any profits are made
under section l 0( 2 )( rii)-Without this being first determined the High
Court in reference under section 66( 1) cannot decide whether there has
heen failure to disclo.1e material facts,
The appellant was a private limited company. The business and assets
of the appellant 1,.vere purchased by another company
under agreement
dated September 9, 1951.
l n the original proceedings for assessment to
income-tax. for the assessment year 1952-53 the appellant brought the
transactions of sale to the notice of the Inco1ne-tax. Officer and placed before hin1 certain relevant documents and also furnished the information
asked for.
Setting off the
unabsorbed
depreciation
brought forward
against tht: income as found by him the Incomi.:-tax office determined the
income of the appellant for the said assessment year at 'NIL'. Sometime
later the successor-in-.office of the said Income-tax Officer issued a notice
under s. 34(1 l(a) of the Indian Income-tax Act, 1912 to the appellant
a'fter obtaining sanction from the Commissioner of Income-tax.
He held
that the appellant had not disclosed its profit under s. 10(2) (vii) of the
Act resulting from the sale of its assets and detern1ining the said profits at
Rs. 4,88.386, he made a re-assessment. The Appellate Assistant Commissioner confirn1ed the order.
The Tribunal. ho~·ever, held that the material facts were all disclosed to the Income-tax Officer at the time of the
origirial assessment and a mere change of opinion did not justify proceedings under s. 34(1 )(a). At the request of the Commissioner of Incometax the Tribunal referred to the High Court the questions (i) whether in
the circumstances of the case it could be held that in the original assessment proceedings the assessee had made a full disclosure of material particulars; and (ii) whether having initiated prooeedings Wlder s. 34( I) (a)
the Income-tax Officer could have later relied on s. 34(1) (b).
HELD : The law casts a duty on the assessee to 'disclose fullv
and
truly all material facts necessary for his assessment' for the relevarlt year.
Further t.he explanation to section 34(1) says that mere production before
the Income-tax Officer of account books .or other evidence from
which
material facts with due diligence could hav'e been discovered bv the Income-tax Officer will not amount to disclosure within the meaning of the
section. In the present case the price realised at the sale in excess of the
written down value of the assets sold, had not been included as profits in
the return submitted bv the assessee. It had also not shown the same in
•ection 'D' of Part I of the return. The assessee had not shown either in
its return or in any of the documents submitted to the Income-tax Officer,
the written down value of the assets sold. This failure amounted to
a
failure on the part of the assessee to disclose fully and truly the materiaf
762
SUPREME COURT REPORTS
[I 971] I S.C.R.
facts necessary for its assessment.
From the cryptic
statement ot
the
Income-tax Officer in the original assessment order that 'no adjustment is
necessary• the Tribunal was not justified in drawing the interence that the
Income-tax Officer had considered all the facts. [766 F-G]
V.D.M.RM.M.RM. Muthiah Chettiar v. Commissioner of Income-tax,
Madras, 74 l.T.R. 183, held inapplicable.
CalcuHa Discount Co. Ltd. v. lncome-t<x Officer, Companies Distt I,
Calcutta, 41 J.T.R. 191. distinguished.
The High Court should not have and this Court would not answer
the questions referred under s. 66(1) of the Act because those questions
could not be answered without first deciding whether a part of the sale
price received by the assessee amounted to profits under s. 10(2) (vii).
[768 C-DJ
. [Tribunal directed to decide first whether the assessee had any profits falling within s. 10(2) (vii) and thereafter decide the appeal]
Ci'''L APPELLATE JURISDICTION: Civil Appeal No. 1345 of
1967.
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Appeal from the judgment and order dated February 10, 1966
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of the Bombay High Court in Income-tax Reference No. 19 of
1962.
A. K. Sen, Vasant Mehta..
and Ravinder Narain,
for the
appellant.
Jagadish Swm•up, SoUcitor-General, S. Mitra, S. K. Aiyar and
B. D. Sharma, for the respondent.
The Judgment of the Court was delivered by
Hegde, J.
This is an appeal by certificate under s. 66A(2) of
the Indian Income-tax Act, 1922 (to be hereinafter referred to
as the 'Act'). The assessee is a Private Limited Co. The a,:;cs:;-
ment year with which we are concerned in this C<»e is 1952-53,
the relevant accounting year ending on :March 31, 1952.
The
assessment for that year was completed by the Jncome-tax Officer
on August 4, 1953. He determined the asses~ee's business profits
of the year ended on March 31, 1952 at Rs. 33,096/- subjectto
the assessee's claim of unabsor]?~d depreciation brought forward
tci the extent of Rs. 42,000/- and odd.
After setting off the
unabsorbed depreciation to the extent of Rs 33,096/-, he determined the assessee's total income for the assessment year 1952-53
at 'Nil'. In the course of the assessment proceedings, the assessee
company informed the Income-tax Officer by its letter of July 2,
1953 about the sale of the assessee company to the Amalgamated
Electricity Co. (Belgaum) Ltd. (to be hereinafter referred to as the
'Belgaum Co.'). It also brought to the notice of the Income-tax
Officer, the following documents :
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MALEGAON ELECTRICITY v. C.I.T. (Hegde, J.}
763
(a) Appropriate extract fro~ the minutes of the meeting of the Board of Directors of the Belgaum
Company held on 16~4-1951 agreeing.to purchase the assets of the assessee company;
(b) Resolution passed on 19-9-1951 by the Boa'.d. of
Directors for the assessee company decidmg
to sell the concern to the Belgaum Company;
(c} Agreement dated 19-9-1951 between the
said
two companies;
Later on in response to a Jetter from the Income-tax Officer, the assessee company informed him the .manner in which t~e
!.ale price of Rs. 9,35,246/15/8 was detenmned. It also subnutted a statement of unabsorbed
depreciati;m.
That statement
set out the depreciation accrued as well as that allowed.
The
entire consideration for the sale was paid in cash on October 4,
J 951 and the profits earned by the assessee for the period of six
months ended on September 30, 1951 were paid over to the
Belgaum Company.
In completing the original assessment, the
Income-tax Officer observed :
"On going through these documents and the ~opies
of the Resolution passed by the shareholders of the
Amalgamated Electricity Co., it is seen that no adjustment is necessary in the matter.
The position of the
company's total income is determined as under ...... "
We may mention at this stage that the consideration received
hy the assessee company for the sale of its assets was much more
than their written down value.
Yet the assessee company did
not show in its return any profits under s. 10(2)(vii) of the Act nor
did it show the price received in excess of the written down value
of the assets sold in Part I of Section 'D' of the Return.
Sometime later the Income-tax Officer found out that the
profits de~med to have been earned by the assessee company under
s. I 0(2)(•111) had not ~ee_n assessed.
Hence after obtaining the
sanchon of the Comm1ss10ner, he commenced proceedings under
s. 34(1 )(a).
After hearing the assessee, the Income-tax Officer
:e-assessed the assessee on August 26, 1957 determining its total
mcome for the assessment year in question at Rs. 4,48,893 /-
0n the basis that the profits earned by the assessee under
s. I 0(2)(vii) were Rs. 4,88,386/-. He rejected the contention of
!he ~s.se.ssee that the notice issued by him under s. 34(1)(a} was
mvalto masmuch as it had placed before him all the primary
facts necessary for the assessment.
The assessee unsuccessfully
c0ntended that there was no basis for his conclusion that there was
any failure on its part to disclose fully and truly all
material
facts aecessary for its assessment.
The Income-tax Officer opined
SUPREME COURT REPORTS
(1971] l S.C.R.
that the f~ilure of the assessee to disciose its profits under
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s. 10(2)(vu) brought the case within the :;cope of s. 34(1)(a). In
appeal the Appellate Assistant Commissioner concurred with the
view taken by the Income-tax Officer.
He held that the assess~e
had a statutory duty to submit a return showing all profits includrng the deemed profits under s. I 0(2)(vii).
On a further appeal to the tribunal, lhe impugned assessment
was challenged on various grounds.
It was urged before the tri·
bunal, on behalf of the assessee that no portion of the price rea!i;-
ed by the sale of its assets came within the scope of s. 10(2) (viii
and further even if any portion of that price can be considered
as deemed profits under s. 10(2)(vii), it was impermissible for the
Income-tax Officer to initiate proceedings under s. 34(1)(a) as
the assessee had placed all the primary facts befor~ the Income-tax
Officer and therefore it cannot be said lhat it had not fully and
truly disclosed all material facts.
On behalf of the Revenue, it
was urged before the tribunal that the part of price realised by
the sale of the assets should be deemed as profits under s. I0(2)(vii1:
those profits had not beer. included in the return or the assesscc
nor has the assessee placed all the material facts necessary for
determining its tax liability; therefore the Income-tax Officer was
justified in initiating proceedings under s. 34(1 )la) and at any
rate the impugned assessment can be justified under s. 34(l)(b1.
The tribunal did not go into the question whether any part of
the sale proceeds can be considered as
deemed profits
unde~
s. I 0(2 )(vii) but it held that the assessec had placed before the
Income-tax Officer, all the primary facts necessary for its assessment and therefore it cannot be said that it had failed to disclo>e
fully and truly all material facts.
It observed :
''.Them can be no manner of doubt that all primary
facts regarding the transaction of the sale of assessee'S
assets were placed by the assessee before the Income-tax
Officer at the time of the original assessment.
The then
Income-tax Officer appears to have applied his mind to
the facts of the ca.se and after doiag so he arrived at
the finding that no adjustment in regard to the surplus
arising out of the sale of the assets was necessary.
Whether or not there wa.s any profit under s. 10(2)(vii),
and, if so, whether it was taxable was an inference to be
drawn from the facts which were fully placed before
.the Income-tax Officer. The mere omission of the sale
transaction from section D of Part I of the return of
income would not enable the Departmental authorities
to hold that the assessee had failed to disclose fully <md
truly all material facts necessary for its assessmeni.
In
·iicw of the fact that all the relevant facts were available
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MALEGAON ELECTRICITY v. C.J.T. (Hegde, J.)
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to the Income-tax Officer who made the original assessment, the present assessment on . those very facts
amounts to merely a change of opimon b~ the Incometax Officer.
There has been no suppression
of any
material information at the time of the original assessment and as such the action under sertion 34(l)lll) cannot be sustained ...
It rejected the contention of the Revenue that the impugne?
JSSessment can be justified under s. 34(l}(b) as accordmg to 11
the facts proved in the case do not bring' the case within that
provision and further the Income-tax OITtcer did not proceed
under that provision.
At the instance of the Commissioner of Income-tax the tribunal
submitted the following questions for the orinion of the High Court
of Bombay:
"(!) Whether in the circumstances of this case it can
be held th~t in the course of original 11ssessment
proceedings for the assessment year 1952-53, the
assessee company omitted or failed to disclose
fully and truly all the material facts
necessary
for its assessment for that assessment year ?
q) Whether, where as a matter of fact, action for reassessment proceedings had been
initiated on
the belief that the provisions of s. 34(1) (a) were
properly applicable to the facts of the case Department was precluded from
sustaining
the
validity of the re-assesslneut
made
on
the
grounds that the reassessment fell as well within
the scope of s. 34(l)(b) ?"
The High Court answered both these questions in favour of
the Revenue.
Hence this appeal.
In our judgment the tribunal erred in declining to decide the
question whether any portion of the sale price came within the
scope of s. 10(2) (vii). That question should have been examined
at the very outset for the purpose of considering whether the
assessee had placed before the Income-tax Officer truly and fully
all material facts necessary for the purpose of its assessment. If
it is found that any wrtion of that sale price are profits then in
our opinion the High Court was right in holding that the assessee
had failed to place before the Income-tax Officer during the original assessment truly and fully all. material facts necessary for the
purpose of assessment.
Admittedly the price realised at the sale
in excess of the written down value of the assets sold, had not
766
SIJPREME COURT REPORTS
[1971] l S.C.R.
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been included as profits in the return submitted by the assessee.
It had also not shown the same in section 'D' of Part I of the
return. It may also be noted that the assessee had not shown
either in its return or in any of the documents submitted to the
Income-tax Officer, the written dowr. vaiue of the assets sold.
Hence not only the Income-tax Officer was not told that the
assessee had earned any profit under s. l 0(2)(vii) nor even the esse.ntial fact viz. the written down value of the assets sold was
supplied to him so as to enable him to find out the price in excess
of the written down value realised by the asses~ee. It is true that
if the Income-tax Officer had made some investigation particularly
if he had looked into the previous assessment rewrds, he would
have been able to fine! out what the written down value of the
assets sold was and consequently he wculd have been able to find
out the price in excess of their written down value realised by the
assessee.
It can be said that the Income-tax Officer; if he had
been diligent could have got Jl)l the necessary information from
his records.
But that is not t~ same thing as saying that the
assessee had placed before the Income-tax Officer truly and fully
all material facts necessary for the purpose of assessment.
The
law casts a duty on the assessee to 'disclose fully and truly all
material facts necessary for his assessment for that year'. Further,
.Explanation to Section 344(1) says-:
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"Production before the Income-tax Offictr of account-books or other evidence from which material
facts could with due diligence have been discovered by
the Income-tax Officer will not necessarily amount to
disclosure within the meaning of this section".
If the assessee had disclosed to the Income-tax Ollicer, the
surplus price realised by it over and above the written down value
of the assets sold or in the alternative if it had informed the Incometax Officer the price realised as well as the written down value
of the assets sold, then it could have been said that the assessc.:
had done its duty and it was for the Income-tax officer t'l dr~w
any inference on the facts placed before him.
But the failure of
the assessee to disclose to the Income-tax Officer the fact that the
pdce realised by it by sale of its assets was more than the written
down value of those asse!s or at least the written down value of
those assets amounts, in our opinion, to a failure on its part to
disclose fully and truly the material facts necessary for its assessment.
From the cryptic statement of the..lncome-tax Officer h
the original assessment order trat "no adjustment is necessary"
the tribunal was not justified in drawing the inference that the
Income-tax Officer haci considered all the relevant facts.
In support of his contention that the disclosure made ty the
assc;see \\dS true and full in all material particulars and hence
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MALEGAON ELECTRICITY v. C.J.T. ( Hegde, J.)
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no proceedings could have been taken under s. 34(l)(a).
Mr.
A. K. Sen, learr;ed Counsel for the assessee reiied on the decision
of this Court in V.D.M. RM.M.RM. Muthiah Chettiar v. Commissioner of Jncome·tax, Madras(').
In that case the que~tion that
arose for decision was whether the assessee's failure to include in
his return the income of his wife and his minor sons adnutted to
the partnership of which he was a partner assessable in his hands
under s. 16 ( 3 )(a)( ii) ca11 be considered as a failure to disclose
truly and fully all facts material for the assessment. This Court
came to the conclusion that the omission in question did not \>Orne
within the scope of s. 34 ( 1 )(a). Therein this Court observed
that in the form of return prescribed under rule 19, of the Indian
lncome·tax Rules, 1922, framed under s. 59 of the Act, there
was no clause which required disclosure of the income of any
person other than the income of the assessee, which was liable to
be included in his total income.
Nor was the assessee required
under s.22(5) of the Act, in making a return, to disclose that
any income was received by his wife or minor child admitted to
\hP. benefits of partnership in a firm of which he was a partner.
Hence by not showing the income of his wife and minor childr~n.
the assessee cannot be deemed to have failed to disclose fullv and
truly all material facts necessary for his assessment within the
meaning of s. 34(l)(a) of the Act.
Therein this Court further
observed :hat s. 16(3) of the Act imposes an obligation upon the
Income-tax Officer to compute the total income of an individual
for the purposes of assessment by including the items of income
set out in cls.(i) to (iv) and (b) but thereby no obligation is imposed
upon lhe taxpayer to disclose the income liable to be included in
his assessment under s. 16(3). For failing or omitting to disclos~
that income proceedings for reassessment cannot therefore be
commenced under s. 34(1 )(a).
The ratio of the above Jccision
is inapplicable to the facts of the present case.
If any part of the
price with which we are concerned ;n this case can be considered·
as deemed profits under s. 10(2)(vii), then the assessee had a dutv
to. i~clude it in his return.
His failure to do so brings h;s case
w1thm the scope of s. 34(l)(a). Mr. Sen next relied on the decis:on of this Court in Calcutta Discount Co. Ltd. v. Income tax
Officer, Companies Distt. I Calc•Atta and anr. (2). There this.
Court ltad observed :
"Once all the primary facts are before the assessing
authority, he reqajres no further assistance by way of
disclosure. It is for him to decide what inferences of
facts can be reasonably drawn and what legal inferences
have ultimately to be drawn.
It is not for somebody
else-far less the assessee-to tell the assessing authuiity
what inferences whether of facts or law,
should be
(1) 74 I. T. R. 183.
(2) 41
T. T. R. 191 at 201..
768
SUPREME COURT REPORTS
[1971] I S.C.R.
drawn.
Inde~d, when it is remembered that
people
often differ as regards what inferences should be drav.n
from given facts, it will be meaningless to demand that
the assessee must disclose what inferences-whether of
facts or law-he would draw from the primary facts."
ln that case the question for consideration was whether the
assessee had a duty to inform the Income-tax Officer with what
intention the shares concerned in that case were sold.
We do not
thmk that the decision in question is of any assistance
to
the
1ssessee.
For the reasons mentioned above, we are of
the
opinion,
that the High Court should not have and we in our turn will
not answer the questions referred under s. 66(1)
of
the
Act
because in our opinioh those questions cannot be answered without
first deciding whether the part of the sale price receiveci by the
assessee amounts to profits under s. I 0(2)(vii).
The tribunal must
first decide that question and thereafter decide the other questions
of law arising for decision on the basis of its decision whether
there was any profits falling within s. 10(2)(vii).
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In the result we allow this appeal and in place of th0 answers
given by the High Cbutt we enter a decision to decline tu auswer
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those questions.
It is for the tribunal to decide the appeal before
it in the light of this decision.
In the circumstances of the case
we make no order as to costs.
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Appeal allowed.