Appeal No 650 of 1957
Appeal from the judgment dated July 13 1956 of the Patna High Court in Miscellaneous Judicial Case No 665 of 1954
R Ganapathy Iyer and R H Dhebar for the appellant
A V Viswanatha Sastri and R C Prasad for the respondent
November 29
The Judgment of the Court was delivered by HIDAYATULLAH J
This is an appeal by the Commissioner of Income tax with a certificate against the judgment and order of the High Court at Patna answering two questions of law referred to it under section 661 of the Income tax Act by the Tribunal in the negative
Those questions were 1 Whether in the circumstances of the case assessment proceedings were validly initiated under section 34 of the Indian Income tax Act 2 If so whether in the circumstances of the case the amount received from interest on arrears of agricultural rent was rightly included in the income of the assessee  The assessee the Maharaja Pratapsingh Bahadur of Gidhaur had agricultural income from his zamindari for the four assessment years 1944 45 to 1947 48
In assessing his income to income tax the authorities did not include in his assessable income interest received by him on arrears of rent
This was presumably so in view of the decision of the Patna High Court
When the Privy Council reversed the view of law taken by the Patna High Court in Commissioner of Income tax vs Kamakhya Narayan Singh 1 the Income tax Officer issued notices under section 34 of the 1 762 Indian Income tax Act for assessing the escaped income
These notices were issued on August 8 1948
The assessments after the returns were filed were completed on August 26 1948
Before the notices were issued the Income tax Officer had not put the matter before the Commissioner for his approval as the section then did not require it and the assessments were completed on those notices
Section 34 was amended by the Income tax and Business Profits Tax Amendment Act 1948 No 48 of 1948 which received the assent of the Governor General on Sep tember 8 1948
The appeals filed by the assessee were disposed of on September 14 and 15 1951 by the Appellate Assistant Commissioner before whom no question as regards the validity of the notices under section 34 was raised
The question of the validity of the notices without the approval of the Commissioner appears to have been raised before the Tribunal for the first time
In that appeal the Accountant Member and the Judicial Member differed one holding that the notices were invalid and the other to the contrary
The President agreed with the Accountant Member that the notices were invalid and the assessments were ordered to be set aside
The Tribunal then stated a case and raised and referred the two questions which have been quoted above
The High Court agreed with the conclusions of the majority and the present appeal has been filed on a certificate granted by the High Court
Section 34 as it stood prior to the amendment Act No 48 of 1948 did not lay any duty upon the Income tax Officer to seek the approval of the Commissioner before issuing a notice under section 34
The amending Act by its first section made sections 3 to 12 of the amending Act retrospective by providing sections 3 to 12 shall be deemed to have come into force on the 30th day of March 1948 
Section 8 of the amending Act substituted a new section in place of section 34 and in addition to textual changes with which we are not concerned also added a proviso to the following effect  Provided that 763 1 the Income tax Officer shall not issue a notice under this sub section unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice
 The question is whether the notices which were issued were rendered void by the operation of this proviso  The Commissioner contends that section 6 of the  particularly cls
b and c saved the assessments as well as the notices
He relies upon a decision of the Privy Council in Lemm vs Mitchell 1 Eyre vs Wynn Mackenzie 2 and Butcher vs Henderson 3 in support of his proposition
The last two cases have no bearing upon this matter but strong reliance is placed upon the Privy Council case
In that case the earlier action which had been commenced when the Ordinance had abrogated the right of action for criminal conversation had already ended in favour of the defendant and no appeal therefrom was pending and it was held that the revival of the right of action for criminal conversation did not invest the plaintiff with a right to begin an action again and thus expose the defendant to a double jeopardy for the same act unless the statute expressly and by definite words gave him that right
The Privy Council case is thus entirely different
No doubt under section 6 of the it is provided that where any Act repeals any enactment then unless a different intention appears the repeal shall not affect the previous operation of any enactment so repealed or anything duly done thereunder or affect any right obligation or liability acquired accrued or incurred under any enactment so repealed
It further provides that any legal proceedings may be continued or enforced as if the repealing Act had not been passed
Now if the amending Act had repealed the original section 34 and merely enacted a new section in its place the repeal might not have affected the operation of the original section by virtue of section 6
But the amending Act goes further than this
It 1  2 3 764 repeals the original section 34 not from the day on which the Act received the assent of the Governor General but from a stated day viz March 30 1948 and substitutes in its place another section containing the proviso above mentioned
The amending Act provides that the amending section shall be deemed to have come into force on March 30 1948 and thus by this retrospectivity indicates a different intention which excludes the application of section 6
It is to be noticed that the notices were all issued on August 8 1948 when on the statute book must be deemed to be existing an enactment enjoining a duty upon the Income tax Officer to obtain prior approval of the Commissioner and unless that approval was obstained the notices could not be issued The notice were thus invalid
 The principle which was applied by this Court in Venkatachalam vs Bombay Dyeing  Mfg Co Ltd 1 is equally applicable here
No question of law was raised before us as it could not be in view of the decision of this Court in Narayana Chetty vs Income tax Officer 2 that the proviso was not mandatory in character
Indeed there was time enough for fresh notices to have been issued and we fail to see why the old notices were not recalled and fresh ones issued
For these reasons we are in agreement with the High Court in the answers given and dismiss this appeal with costs
A appeal dismissed


Summary:
The appellant who had agricultural income from his Zamindari was assessed to income tax for the four assessment years 1944 45 to 1947 48
The income tax authorities did not include in his assessable income interest received by him on arrears of rent in view of a decision of the Patna High Court but subsequently this view of law was reversed by the Privy Council
On August 8 1948 the Income tax Officer issued notices under section 34of the Indian Income tax Act 1922 for assessing the escaped income
Before the notices were issued the Income tax Officer had not put the matter before the Commissioner for his approval as the section then did not require it and the assessments were completed on those notices
In the meantime certain amendments were made to the Indian Income tax Act by Act 48 of 1948 which received the assent of the Governor General on September 8 1948
The Amending Act substituted a new section in place of section 34 which among other changes added a proviso to the effect that the Income tax Officer shall not issue a notice unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice and also made it retrospective by providing that the new section shall be deemed to have come into force on the 30th day of March 1948
The question was whether the notices issued by the Income tax Officer on August 8 1948 without the approval of the Commissioner were rendered void by reason of the operation of the amended section 34
The Commissioner claimed that section 6 of the  saved the assessments as well as the notices
Held that section 6 of the  was in applicable as the Amending Act of 1948 indicated a different intention within the meaning of that section inasmuch as the amended section 34 of the Indian Income tax Act 1922 provided that it shall be deemed to have come into force on March 30 1948
Lemm vs Mitchell   distinguished 761 Held further that the notices issued by the Income tax Officer on August 8 1948 and the assessments based on them were invalid
Venkatachalam vs Bombay Dyeing  Mfg Co Ltd   applied