Judgment

SARKAR, J. : In 1944, the appellant was a resident of Lahore. On October 14, 1944, he was assessed to income-tax by the Income-tax Officer, Lahore for the assessment year 1944-45 on an income of Rs. 49,047. As is well known in August 1947, India was partitioned and Lahore came to be included in the newly created Dominion of Pakistan and went out of India. After the partition, the appellant shifted to Delhi and was residing there at all material times.

2. The appellant held shares in a company called Indra Singh and Sons Ltd. which had its office at Calcutta. The other shares in that Company were held by Indra Singh and Ajaib Singh. The holding of all the shareholders were equal. An annual general meeting of this company was held on April 17, 1943, in which the accounts for year ending March 31, 1942, were placed for consideration. The accounts were passed at the meeting but no dividend was declared though the accounts disclosed large profits.

3. On June 11, 1947, an Income-tax Officer of Calcutta passed an order under S. 23A of the Income-tax Act that Rs. 14,23,110 being the undistributed portion of the assessable income of the company for the year ending March 31, 1942, after the deductions provided in the section, be deemed to have been distributed as dividend among the three shareholders on the date of the general meeting, that is, April 17, 1943. As a result of this order a sum of Rs. 4,74,370 being his share of the amount directed to be distributed, had under the section, to be included in the income of the appellant for the assessment year 1944-45. The validity of this order was never challenged.

4. The Income-tax Officer, Calcutta informed the Income-tax Officer, Delhi of the order made by him under S. 23A. Thereupon the Income-tax Officer, Delhi on April 10, 1948, issued a notice under S. 34 of the Act to the appellant then residing in Delhi, requiring him to file within thirty-five days, a revised return for the year 1944-45 as a part of his income for that year had escaped assessment. Obviously the notice was on the basis that the said sum of Rs. 4,74,370 had escaped assessment for the year 1944-45. On February 10, 1949, the appellant submitted a revised return under protest and included in it the said sum of Rs. 4,74,370. The Income-tax Officer, Delhi then reopened the earlier assessment and on March 25, 1949, made a fresh assessment order for 1944-45 assessing the appellant on an income of Rs. 5,23,417. The appellant appealed against this order to the Appellate Assistant Commissioner but his appeal was dismissed. He then appealed to the Income-tax Appellate Tribunal but was again unsuccessful. He has filed the present appeal with special leave of this Court against the judgment and order of the Income-tax Appellate Tribunal.

5. A preliminary point as to the maintainability of this appeal was taken by learned Solicitor-General appearing on behalf of the respondent Commissioner of Income-tax, that the appellant having been unsuccessful in availing himself of the other remedy provided in the Act should not be allowed the extraordinary remedy of approaching this Court with special leave. Now, under the Income-tax Act, the appellant could apply to the Tribunal to refer to a High Court any question of law that arose out of the former s decision. The Act itself gave no right of appeal at all from that decision, nor any other remedy against it. The appellant had applied to the Tribunal for an order referring certain questions arising out of its decision to the High Court at Calcutta but was unsuccessful in getting an order for reasons to be presently stated. The Tribunal was in Calcutta. The appellant who was in Delhi, asked a firm of Income-tax practitioners named S. K. Sawday & Co. in Calcutta, to move the Tribunal for an order of reference. Sawday & Co. had the necessary petition and papers prepared. They sent these to the appellant at Delhi by post on January 5, 1953, for his signature and the papers reached Delhi