Proper service of notice under S.34 is essential to confer jurisdiction on the Income Tax Officer to proceed with re-assessment proceedings.

P. Govindan Nair, J.

1. The Income Tax Appellate Tribunal, as required by this Court, has stated a case and has referred the following nine questions for our opinion:

(1) Whether consequent on the transfer of assessee's file from Kozhikode to Trichur, the Kozhikode Officer had jurisdiction to initiate and complete the proceedings in question?

(2) Whether notice under S.34 has been served on the assessee as required by law and whether the assessment is proper and legal, in the absence of a proper service of notice on the applicant?

(3) Whether on the facts and in the circumstances of the case, the provisions of S.34 were property applied, especially after the identical amount had been the subject of examination by the Income Tax Officer before accepting the disclosure made by the applicant ?

(4) Whether on the facts and in the circumstances of the case there is any material to sustain the finding of the Tribunal that any income has escaped assessment ?

(5) Whether in the facts and circumstances of the case the finding that the amount is income from other sources is sustainable ?

(6) Assuming the credit as assessable whether it is assessable for the year 1945-46?

(7) Whether the re-assessment under S.34 is competent when the original assessment itself was on estimate made by the Officer ?

(8) Whether in the facts and circumstances of the case the amount in question remitted from Cochin could be treated as income from other sources or assessed at all in Kozhikode?

(9) Whether in the facts and in the circumstances of the case the finding of the Tribunal that the explanation of the assessee is unbelievable is based on any material and legally sustainable ?

2. The matter arises from re-assessment proceedings started against the assessee pursuant to a purported notice dated 27-3-1954 issued to the assessee under S.34 of the Indian Income Tax Act and Question No. 2 above relates to the legality of the service of the above notice on the assessee and the propriety and legality of the assessment in the absence of proper service of notice. We feel that this case can be disposed of by answering Question No. 2 alone and are therefore referring only to such facts as are relevant for answering the above question.

3. The assessment related to the year 1945-46, the corresponding accounting period ending about the middle of August 1944 (year 1119 Malabar Era) according to the assessee, and the period ending 31-3-1945 according to the Department. This difference between the Department and the assessee is not material for answering question No. 2. The assessee was carrying on business in grocery articles as a wholesale trader and as commission agent with Head Office at Trichur and a branch at Kozhikode. Up to and inclusive of the assessment year 1949-50, he was assessed to tax under the Indian Income Tax Act as well as the Cochin Income Tax Act. For the year 1945-46 the assessment under the Indian Income Tax Act was finally completed after appeals and remand on 31-12-1949.

4. The Indian Income Tax Act was extended to the Part B States; and on and from the assessment year 1950-51, the assessment has to be made only under that Act. The assessment records of the assessee were therefore transferred by the Income Tax Officer, Kozikode to the Income Tax Officer Trichur in whose jurisdiction the assessee's main place of business was situated. There were certain voluntary disclosure proceedings and the assessee made a disclosure on 22-10-1951 before the Trichur Income Tax Officer. During the course of those proceedings, the Income Tax Officer Trichur worte to the assessee that he found from the Trial Balance of the Kozhikode business that a loan of Rs. 25,000/- was taken from a lady, N. K. Kunhanam in 1120. He further said that he presumed the lady in question is the wife of the assessee and that the loan represented the undisclosed income of the assessee. The assessee, admitting that the lady is his wife, explained that the money belonged to his wife being p