Judgment

HEGDE, J. :- In this appeal by certificate brought by the Commissioner of Income-tax, Nagpur, two questions arise for consideration. They are :

(1) What is the "previous year" in respect of the source of income, viz., managing agency and selling agency and financing of the Binod Mills Limited, Ujjain, for the purpose of assessment for the assessment year 1950-51 - whether the year ended 31-3-1950 or the year ended Diwali, 1949? and (2) Whether for the purpose of bringing to tax the dividend income of the assessee for the assessment year 1950-51 and having regard to the provisions of Part B States (Taxation Concessions) Order, 1950 (in short Order ), the dividend income say of Rs. 34,468/- (gross Rs. 50,137/-) as well as the dividend income of Rs. 2,28,392/- should be subjected to tax at the concessional rates mentioned in the Schedule to the Order as held by the High Court.

2. The assessee is a Hindu Undivided Family with its Head Office at Indore and branches at several other places in some of the former B States including the State of Madhya Bharat. It derived its income from several sources such as property, businesses, managing agency commission, shares in partnership firms etc. The assessee s family at one time was carrying on business at Bombay and was assessed in the status of non-resident Hindu Undivided Family. Its business in Bombay was, however, closed down sometime in 1945 and no assessment was made on it for the year 1948-49 and 1949-50. Till the assessment year 1947-48, the "previous year" adopted by the assessee was the appropriate Diwali year. For the assessment year 1950-51, the assessee claimed that in respect of its income by way of commission from the managing and selling agency of the Binod Mills Ltd., Ujjain, its "previous year" was one ending on March 31, 1950 and on that basis it contended that the commission accrued to it during the calendar year 1948 could not be brought to tax. This contention was not accepted by the Income-tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal. They took the view that the case of the assessee is covered by the proviso to Section 2 (11) (i) (a) of the Income-tax Act, 1922 (in short "the Act"). According to their view, the assessee had "once been assessed". Therefore it was not open to it to vary its "previous year". In view of that finding, the assessee was assessed on the basis that the Diwali year beginning from 2nd November, 1948 and ending on October 21, 1949 is the relevant account year. In that account year, the assessee derived net dividend income of Rs. 2,62,860/- from the Binod Mills Ltd., Ujjain. Out of this income Rs. 34,468/- were attributable to the profits that accrued or that could be deemed to have been accrued to the Binod Mills in Part A State. But the remaining amount of Rs. 2,28,392/- was held to be attributable to profits which accrued in Part B State viz., Madhya Bharat. As the dividend income attributable to profits accruing in Part A State was subject to tax under the Act, the Income-tax Officer grossed up the net dividend of Rs. 34,468/- to Rs. 50,137/- under Section 16 (2) of the Act. This income was subjected to income-tax and super-tax at the rates prescribed by the Finance Act, 1950, rejecting the claim of the assessee for concession in regard to this income under the Order . The balance of Rs. 2,28,392/- was not subjected to any income-tax in view of the provisions contained in paragraph 12 of the Order . It was, however, subjected to super-tax at the concessional rates mentioned in the Order . The Tribunal rejected the contention of the assessee that the divided income of Rs. 2,28,392/- was not subject to super-tax under paragraph 12 of the Order and that the amount of Rs. 2,62,860/- should not have been apportioned as the Income-tax Officer had done as neither income-tax nor super-tax was leviable on those profits and in any case, super-tax was payable on the entire dividend income, only at the conce