# P. V. Godbolt v. Jqannath Fal<irchand

- **Citation:** [1964] 1 S.C.R. 130
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** CIVIL APPl!LLATE JURISDICTION : Civil Appeal No. 585 of 1960
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-v-godbolt-v-jqannath-fal-irchand-2876
- **Pages:** 7

## Headnote

19'1
.fl.C. Pr""4r, fn.tom1·
'f"a.t Offiur, M•klt
Word, Oomboy
>.
~ ~-fttl n•U(lr.'""'41
'~'
130 SUPREME COURT REPORTS [1964] VOL.
Court in C. A. No. 5~5 of 1960 and C. As. Nos.
214 and 215 of 1958 but in view of the undertaking
given in the High Court by the Department the
appellants in C. A. No. 705 of 1957 shall bear the
costs of the first and second respondents in this Court
and also in C. A. No. Ci09 of 1958 we would make a
similar order in view of the order of the High Court
granting the certificate.
BY CouRT : In accordance with the opinion
of the majority, the appeal is allowed.
The appell·
ants will pay costs of respondents l and 2 a, per
consent of the parties referred to in the certificate,
~rantrd by the High Court.
A pptal allowtd.
P. V. GODBOLE
v.
JAG.<\NNATH FAKIRCHAND
(S. K. DAS, J. L. KAPUR,
A. K. SARKAR,
\.f. HmAYATUJ.LAH and
RA<lllUBAR DAYAL, JJ.)
1"cot11•·1'a.c--E•~wd income-Limillllion
for aaau..
nacnt-81111i11g prooi.ion-A pplirJJbilil11 and r,,,..titutionality ofJ..dian 1"cm11<-W.:t Ar.t 1922 (II of 19:!2), •· 34-lndian
J11rmnt·"'-' (,ti.1<11dmr11l) Acl, /.953 (25 of 1953), 88. 18, 31Ct>t1t1:111tio11 of fo,(iu, Ari. 14.
In p11rsua11rc of the dir.ctions given by the Appellate
Aldstaut
Couuni~sioncr in
connection with the appeal of
another asscssce, the Income·la< Officer on February 18, 1957,
•~•ued a notice urnler s. 34 ( l) of the Indian Income·tax Act,
J9Z2, to the 1-..po1u.lcnt in rc•pect of the assessment years 194445 \945-46 anrl 1946·47. The re•pondent contended that the
ln~mC•W 0ffiCcr had no jur isdirtion to assess him after four
years of the expiry of the year of assessment. The appellant
'
'
1 S.C.R.
SUPREME COURT REPORTS
131
contended that the serond proviso to s. 34 (3) introduced by
the Amending Act of 1953 saved the proceedings.
Held (per Das, Kapur and Sarkar, J ]., Hidayatullah
and Dayal,lJ., dissenting), that the proceedings were barred
and were not saved by the second proviso to s. 34 (3).
Per Das and Kapur,.JJ.-The second proviso to s. 34 (3)
did not revive the power to asse" which h•d already become
barred by s. 34 (3).
S. C. Prashar, Income-ta.< Officer v. Vasantsen Dwarkadaa,
[1964] Vol. 1 S. C.R. 29 followed.
Per Sarkar, J .-The second
proviso to s. 34 (3) was
unconstitutional as it offended Art,
14 of the Constitution.
The Commi88ioner of Income-tax, Bihar & Orissa v.
Saraar Lakhmir Singh, [1964] Vol. 1 S.C.R. 148, followed.
Per
HidayatuUah
and Dayal, JJ.-The
notice and
proceedings were valid. The asses.men! was governed by the
secnnd proviso to s. 34 (3) as amended in 1953 and bys. 31
of the Amending Act of 1953. The notice was further saved
by the provisions of the Amending Act of 1959.
CIVIL APPl!LLATE JURISDICTION : Civil Appeal
No. 585 of 1960.
Appeal from the judgment and order dated
September 4, 1957 of the Bombay High Court in
Special Civil Application No. 1400of1957.
K. N. Rajagopal Sastri and P. D. Menoo for
thr Appellants.
J. B.
D.idaclv.mji,
O. C.
Mathur
and
Ravinder Narain for the Rrspondent.
1962. December 12. The following separate
Judgments were delivered by Das, J ., Kapur, J., and
Sarkar, f.
The Judgment of Hidayatullah and
Ra~hubar Dayal, JJ., was delivered by
Hidaya~
tullah, J.
1962
P. V. Godbolt
v.
Jqannath Fal<irchand
1962
P. v. Godlou
v.
J,,.,,..u. Fakirchond
r. """'· J.
132 SUPREME COURT REPORTS [1964] VOL'.
S. K. DAs, J.-The facts· of this appeal have
been stated by my learned brother Kapur, J.
As I
am in agreement with him, I need not re·state the
facts.
The assessment years were 1944-1945, 19451946 and 1946-4 7.
The notice was issued by the
Income-tax Officer on February 18, 19.57, pursuant
to a direction given by the
Appellate Assistant
Commissioner in an appeal of another assessee. The
only question
is whether the second proviso · to
sub-s (3) of s. 34, as amended in 1953 saves the proceedings impugned.
For the reasons given by me in S. C. Prashar,
Income-tax Officer v. Vasantsen Dwarkridas ('), in
which judgment has been delivered to-day, I would
dism

## Text

19'1
.fl.C. Pr""4r, fn.tom1·
'f"a.t Offiur, M•klt
Word, Oomboy
>.
~ ~-fttl n•U(lr.'""'41
'~'
130 SUPREME COURT REPORTS [1964] VOL.
Court in C. A. No. 5~5 of 1960 and C. As. Nos.
214 and 215 of 1958 but in view of the undertaking
given in the High Court by the Department the
appellants in C. A. No. 705 of 1957 shall bear the
costs of the first and second respondents in this Court
and also in C. A. No. Ci09 of 1958 we would make a
similar order in view of the order of the High Court
granting the certificate.
BY CouRT : In accordance with the opinion
of the majority, the appeal is allowed.
The appell·
ants will pay costs of respondents l and 2 a, per
consent of the parties referred to in the certificate,
~rantrd by the High Court.
A pptal allowtd.
P. V. GODBOLE
v.
JAG.<\NNATH FAKIRCHAND
(S. K. DAS, J. L. KAPUR,
A. K. SARKAR,
\.f. HmAYATUJ.LAH and
RA<lllUBAR DAYAL, JJ.)
1"cot11•·1'a.c--E•~wd income-Limillllion
for aaau..
nacnt-81111i11g prooi.ion-A pplirJJbilil11 and r,,,..titutionality ofJ..dian 1"cm11<-W.:t Ar.t 1922 (II of 19:!2), •· 34-lndian
J11rmnt·"'-' (,ti.1<11dmr11l) Acl, /.953 (25 of 1953), 88. 18, 31Ct>t1t1:111tio11 of fo,(iu, Ari. 14.
In p11rsua11rc of the dir.ctions given by the Appellate
Aldstaut
Couuni~sioncr in
connection with the appeal of
another asscssce, the Income·la< Officer on February 18, 1957,
•~•ued a notice urnler s. 34 ( l) of the Indian Income·tax Act,
J9Z2, to the 1-..po1u.lcnt in rc•pect of the assessment years 194445 \945-46 anrl 1946·47. The re•pondent contended that the
ln~mC•W 0ffiCcr had no jur isdirtion to assess him after four
years of the expiry of the year of assessment. The appellant
'
'
1 S.C.R.
SUPREME COURT REPORTS
131
contended that the serond proviso to s. 34 (3) introduced by
the Amending Act of 1953 saved the proceedings.
Held (per Das, Kapur and Sarkar, J ]., Hidayatullah
and Dayal,lJ., dissenting), that the proceedings were barred
and were not saved by the second proviso to s. 34 (3).
Per Das and Kapur,.JJ.-The second proviso to s. 34 (3)
did not revive the power to asse" which h•d already become
barred by s. 34 (3).
S. C. Prashar, Income-ta.< Officer v. Vasantsen Dwarkadaa,
[1964] Vol. 1 S. C.R. 29 followed.
Per Sarkar, J .-The second
proviso to s. 34 (3) was
unconstitutional as it offended Art,
14 of the Constitution.
The Commi88ioner of Income-tax, Bihar & Orissa v.
Saraar Lakhmir Singh, [1964] Vol. 1 S.C.R. 148, followed.
Per
HidayatuUah
and Dayal, JJ.-The
notice and
proceedings were valid. The asses.men! was governed by the
secnnd proviso to s. 34 (3) as amended in 1953 and bys. 31
of the Amending Act of 1953. The notice was further saved
by the provisions of the Amending Act of 1959.
CIVIL APPl!LLATE JURISDICTION : Civil Appeal
No. 585 of 1960.
Appeal from the judgment and order dated
September 4, 1957 of the Bombay High Court in
Special Civil Application No. 1400of1957.
K. N. Rajagopal Sastri and P. D. Menoo for
thr Appellants.
J. B.
D.idaclv.mji,
O. C.
Mathur
and
Ravinder Narain for the Rrspondent.
1962. December 12. The following separate
Judgments were delivered by Das, J ., Kapur, J., and
Sarkar, f.
The Judgment of Hidayatullah and
Ra~hubar Dayal, JJ., was delivered by
Hidaya~
tullah, J.
1962
P. V. Godbolt
v.
Jqannath Fal<irchand
1962
P. v. Godlou
v.
J,,.,,..u. Fakirchond
r. """'· J.
132 SUPREME COURT REPORTS [1964] VOL'.
S. K. DAs, J.-The facts· of this appeal have
been stated by my learned brother Kapur, J.
As I
am in agreement with him, I need not re·state the
facts.
The assessment years were 1944-1945, 19451946 and 1946-4 7.
The notice was issued by the
Income-tax Officer on February 18, 19.57, pursuant
to a direction given by the
Appellate Assistant
Commissioner in an appeal of another assessee. The
only question
is whether the second proviso · to
sub-s (3) of s. 34, as amended in 1953 saves the proceedings impugned.
For the reasons given by me in S. C. Prashar,
Income-tax Officer v. Vasantsen Dwarkridas ('), in
which judgment has been delivered to-day, I would
dismiss the appeal with costs.
KAPUR, J.-Thi~ is an appeal brought on
behalf of Revenue against the judgment and order
of the High Court of Bombay on a certificate granted
by that Court.
In W. P. No. H00/57 the present respondent
challenged .the jurisdiction of the Income-tax Officer
to issue notice under s. !H(I) of the Indian Incomctax Act, hereinafter called the "Act". The assessment years arc
19~4.45, 19,15-46 and 1946--!7 and
the notice was issued by the Income· tax Officer on
February 18, 1957, pursuant to a direction given by
the Appellate Assistant Commissioner in an appeal
of another assessce that the income was the income
of a partnership of which the respondent and the
other assessee were partners.
The High Court held
that the.respondent was a stranger to the proceedings
before the Appellate Assistant Commissioner and
that the second proviso to s. !H(3) of the Act under
~
which the notice was given was unconstitutional as it
offended Art. 14 of the Constitution.
(I) [1964] Vol. I s.c.R. 29.
•
•
l S.C.R. SUPREME COURT REPORTS
l3a
The facts of the appeal are these : The respondent was the karta of a Hindu Undivided Family
which carried on business as merchants and commission agents in cotton, grains and other commodities.
That Hindu· Undivided Family was assessed for the
assessment years 1944-45, 1945-46 and 1946-47. The
assessment for· the year 1944-45 wa~ completed by
the Income-tax Officer on March 14, 1949, and an
appeal was taken against that assessment to the
Appellate Assistant Commissioner and was decided
on February 9, 1956, and then an appeal was taken
to the Income-tax Appellate Tribunal which has not
been shown to have been decided.
For the assessment years 1945·46 and 1946-47 the assessment was
completed in March aud May, 1950, respectively.
Appeals were taken against these assessments to the
. Appellate Assistant Commissioner who remanded the
cases to the Income-tax Officer and they have not
yet been decided.
As regards the assessment year
1946-47 a notice under s. 34(1) was issued and the
order in that case was passed on March 6, 1956 .
. Against that order an appeal was taken to the Appellate ·Assistant Commissioner which is still pending.
It appears that for the year of assessment 1945-46 no
notice under s. 34(1) of the Act was issued .
In 1946 the respondent on behalf of the Hindu
Undivided Family filed a suit against one J agannath
Ramkishan for rendition of accounts as the Munim
of the respondent .. His defence was that he was a
. partner and not a Munim which was accepted and
the suit was dismissed. An appeal against that decree
was dismissed by the High Court.
Jagannath
Ramkishan died during the pendency of the appeal
and his widow Kalavati was impleaded. In the
meantime proceedings under s. 34(1) (a) of the Act
were started against Kalavatibai for the assessment
years 1944-45, 1945-46 and 1946-47 in respect of the
business which her husband Jagannath Ramkishan
had claimed to be a partnership business of the
1962
P.V. Got/bole
v.
Jagannzth Fakirehantl
Kapu,, J
1962
f. V. G.dbol•
..
. 'o,att1th Foiircluwl
s.u., J.
134 SUPREME COURT REPORTS [1964] VOL.
respondent's Hindu Undivided Family and himself.
Two orders were passed by the Income-tax Officer
for those years.
Kalavatibai took appeals against
those orders and the Appellate Assistant Commis·
sioner on October 10, 1956, in allowing those appeals
gave a finding that the business belonged to the
partnership as claimed by Jagannath Ramkishan
and the Income-tax Officer was authorised to make
assessments under the provisions of s. 34 on the said
partnership as also on the respondent for the assessment years l!J-U-4fi, 19!5-46 and 1946-4 7. There·
upon a notice was issued with regard to the three
assessment years on
February 18, 1957, against
M/s
Jagannath
Fa~irchand
and
jagannath
Ramkishan.
These notices were challenged and
were held to be illegal.
Against that order of the
High Court this appeal is brought on a certificate of
the High Court under Art. 132(1) and Art. l33(l)(b)
of the Constitution.
For the reasons given in S. C. Prashar, lncom.etax Officer v. Va8antsen Dwarkadas (1), judgment in
which has been delivered today, this appeal is dismissed with costs.
SARKAR, J.-This case
is
concerned
with
the three assessment years WH-45 1945-46
and
Hl46-4 7.
The assessee is the respondent J agannath
Fakirchand, the /(aria of a Hindu undivided family
who had been ::ssessed
as such for the years 1944·
45 to 1946-48, and appeals from the a<sessment orders
in respect of these years were pending.
The assessee had filed in 1946 a suit against an
ex-employee, Jagannath Ramkishan for accounts of
certain transactions. J agann11 th Ramkishan cont en·
ded that he was not an employee but the transactions
,
•
were the transactions of a business carried on in
"41
partnership between him and the assessee.
The trial
court upheld the contention of Jagannath Ramkishan.
(I) (1964] Vol. I s.c.R. 29.
1 S.C.R.
SUPREME COURT REPORTS
135
The assessee appealed to the High Court of Bombay
against the decision of the trial court but in the
meantime Jagannath :Ramkishan had died and his
wife, Kalavatibai, had been substituted in his place
in that appeal. The High Court dismissed the appeal
but said nothing as to whether Jagannath Ramkishan
was a partner.
In view of the decision in the appeal mentioned
in the preceding paragraph, the revenue authorities
started proceedings against
Kalavatibai
under
s. 34 (1) (a) of the Income-tax Act and assessed her
on the entire income in the aforesaid three years,
realised from the said transactions. Kalavatiba1 then
appealed from this assessment and in the appeal she
contended that her husband's estate was not liable
for the tax on the entire income as the income
belonged to a firm of which her husband was only
one of the partners. The appellate Assistant Com·
missioner accepted this contention of Kalavatibai and
observed : "In view of my finding : .... ~ ...... that the
business belonged to the partnership .. .... .. . .. .. . the
Income-tax Officer ·is hereby authorised to make
assessments under the provisions of s. 34 on the said
partnership as also on the other partner, Shri Jagan·
nath Fakirchand for the assessment years 1944·45,
'1945-46 and 1946-47."
In pursuance bf this o~der the Income-tax
Officer started proceeding under s. 34 (3) ol' the
Income-tax Act, 1922, against the assessee by issuing
a notice on February 18, 1947, calling on him to file
a return in respect of the aforesaid three assessment
years as that income had escaped assessment.
Thereupon the assessee moved the High Court of Bombay
under Art. 226 of the Constitution for a writ to quash
the aforesaid notice
and to _prohibit proceed·
ings being taken thereunder.
The High Court
allowed the writ.
Hence this appeal.
196"2
P P'.Gud0.11
.
v.
Jagllflflath .F<kir •. hond
-
Sarkgr, '·
...... -,·--;-,: .... ----;···"':' :.\
.136 '"SUPREME COURT REPORTS (1964] VOL,
\_'
'
l!li2-
. .
.
.
'
.
.
'
The only question in this appeal is whether the
second proviso to s. 34 (3) of the Income· tax Act, 1922
-.P. V. Godbolt
l•gannathvFakirehand as amended in 1953, could save the proceedings impugned. ·For. the reasons mentioned in my judgment in
The Commissioner of Income-tax, ·:Bihar & Orissa v.
Bardar Lakhmir Singh (1), I think that that proviso
Smlar~ J.
is invalid as offending Art. 14 of the Constitution and
___ affords no protection to the revenue authorities. It
may be added that the impugned notice was issued
in consequence of an order under s. 31 in a proceeding
to which the assessee was not a party.
In the result the appeal is dismissed with costs.
For
the Judgment - of Hidayatullah and
Raghubar Dayal, JJ., see 8. 0. Prashar, Income-tax
Officer v. Vasantsen Dwarkadas, ante p. 29.
. - ··--
BY COURT : In accordance with the opinion of
· the majority, this appeal is dismissed with costs.
__ Appeal dismissed.
----
(I) ]196i] Vol. I S.C.R. 148.
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