S. B. JAIN, I.T.O. NAGPUR versus MAHANDERA

Citation: [1972] 1 S.C.R. 614 · Decided: 07-09-1971 · Supreme Court of India · Bench: K.S. HEGDE · Disposal: Dismissed

Judgment (excerpt)

614 
S. B. JAIN, I.T.O. NAGPUR 
v. 
MAHANDERA 
September 7, 1971 
[K. S. HEGDE AND A. N. GROVER, JJ.J 
Income-tax 
Act, 
1961, s. 291(2)(d) (ii)-lncome-tax Act, 
1922, 
S. 34(1) (a)--Notice under latter Act held beyond time-··l/ proceedings 
pending within meaning of s. 297(2) (d)(ii). 
The Income-tax Officer issued a notice to the respondent on January 
5, 1962 under s. 34(l)(a) of the Indian Income-tax Act, 1922, seeking 
to reopen his assessment for the assessment year 1945-47. 
The respon-
dent challenged the validity of that notice. The High Court quashed the 
impugned notice by its order dated .March 6, 1963 on the ground that the 
notice was issued beyond the time prescribed by law. 
On April 1. 1962 
the Indian Income-tax Act, 1961, came into force. Under s. 297(2) (d) (ii) 
of this Act if "any income chargeable to tax had escaped assessment \vith-
in the meaning of that expression in s. 147 and no proceedings under s. 34 
of the ·repealed Act in respect of any such income are pending at the 
commencement of this Act, a notice under s. 148 may . . . . be issued 
\Vith respect to that assessment year . ... " The Incon1e-tax Officer again 
issued a noticl! under s .. 148 of the New Act in respect of the assessn1ent 
which he earlier unsuccessfully sought to reopen by n1eatb of notice under 
s. 34(1) (a) of the 1922 Act. 
The respondent 
again challenged 
the 
validity of the notice. The High 
Court quashed 
that notice on the 
ground that the Income-tax Officer was not competent to issue that notice. 
In appeal to this Court it was contended that the notice under 
s. 34(l)(a) being an invalid ootice on the ground that it was barred by 
limitation the proceedings initiated on the basis of the notice should be 
considered as not pending when the new Act came into force. Dismissing 
the appeal, 
HELD : What s. 297(2) (d) (ii) requires is the factual pendency of a 
proceeding under s. 34 of the repealed Act. Whether that proceeding was 
barred by limitation or not is irrelevant. 
The proceedings pending before 
a competent authority cannot be said to be not pending merely because 
no relief can be granted in that proceedings because of the bar of limita-
tion. The proceedings in the present case were initiated by a competent 
authority and those proceedings 
were quashed for the reason that the 
notice was issued beyond the time prescribed by law. 
Hence it cannot 
be said that no proceedings under s. 34 of the 1922 Act, either factually 
or legally, \vas pending at the time when the new Act came into force. 
[617 D] 
_ 
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1301 of 
1971 and 1981 of 1968. 
Appeals by special leave from the judgml1nt and order dated 
November 15, 1956 of the Bombay High Court, Nagpur Bench 
in Special Civil Application No. 150 of 1963. 
B. Sen, J. Ramamurthy, R. N. Sachthey and B. D. Slwrma, 
for the appe!lant (in both the appeals). 
A. S. Bobde, G. L. Sangh! and B. R. Agarwal, for the respo.n-
dent (in both the appeals). 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
s. B. JAIN v. MAHANDERA (Hegde, J.) 
61 5 
The Judgment of the Court was delivered by 
Hegde, J. 
Civil Appeal No. 1301 (NCT) of 71 is by special 
leave. This appeal was filed under the following circumstances : 
Civil Appeal No. 1981 of 1968 was brought on the strength 
of a certificate issued by the High Court. That certificate, being 
:not in accordance with law in as much as the High Court gave no 
reason in support of the same, the appeal filed on the strength of 
that certificate turned out to be not maintainable. 
Hence the 
appellant had to move this Court for special leave to appeal 
against the judgment O·f the High Court. 
The same having been 
granted he has brought Civil Appeal No. 1301 of 71. 
Hence 
these two appeals. against the same judgment. 
Now coming to the merits of the case, the Jjncome-tax Officer 
issued a notice to the respondent on January 5, 1962 under section 
34 ( 1) (a) of the India1n Income-tax Act, 1922 seeking to reopen 
his assessment for the assessment year 1946-4 7 the relevant 
accounting year being the calender year 1945. The assessee res-
ponde;nt challenged the validity of that notice by means of a writ 
petition under Article 226 of the Constitution before the High 
Court of Bombay. 
The High Court accepted that writ petition 
and quashed the impugned notice by its order dated March 6, 1963. 
Qn April 1, 1962 the Income-tax Act, 1961 came into force. 
Thereafter the Income-tax Office

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