JUDGMENT

1. This is a Reference by the Commissioner of Income Tax made at the instance of one Rai Bahadur Chhotey lal O.B.E. of Moradabad.

2. It appears that the assessee Rai Bahadur Lala Chhotey lal was assessed at an income of Rs. 1,14,546. In determining the tax payable by him he was taken to be a Hindu undivided family and for that reason the first Rs. 25,000 of his income above the first Rs. 50,000 was not charged with any supertax. The assessment was to the best of the judgment of the Income Tax Officer u/s 23(4) of the Income Tax Act. The assessee thereupon, wanted to have the matter reviewed and he made an application u/s 27, in which he stated that he was an individual and not the head of an undivided family. The Income tax Officer thereby found out his mistake for not charging any super tax on a sum of Rs. 25,000.

3. The Income Tax Officer on the 12th of March. 1930, issued a notice u/s 34 of the Income Tax Act read with Section 58, and asked for a fresh return. The assessee made a return and stated that his income was Rs. 85 000 and odd. The Income Tax officer being of opinion that the last assessment could not be re opened rejected the return and determined the super-tax payable on the sum of Rs. 25,000 over which no super-tax had been calculated. There was an appeal and subsequently there was an application to the Commissioner of Income Tax for the reference.

4. The Commissioner has framed the following questions for our determination:

(1) Where an assessment of super-tax has been completed as if the assessee were a Hindu undivided family, and it is subsequently held that the assessee is an individual may the Income Tax Officer proceed u/s 34 with a view to assessing to super-tax the Rs. 25,000 of income which has escaped that form of taxation?

(ii) In the circumstances stated in question (1) and where the original assessment was, in the absence of a return, made u/s 23(4) and the assessee in answer to the notice u/s 22(2) Section 34, files a return disclosing a lesser income than that taken in the original assessment should the Income Tax Officer re-open the assessment and determine the assessee's income de novo or should he confine himself to the assessment to super-tax of that portion of the income as determined in the original assessment which has escaped taxation?

(iii) In the circumstances stated in questions (i) and (ii) has the filing of the return in answer to the notice u/s 22(2) 34 the effect of curing the default for which the original assessment was made u/s 23(4) and should the whole assessment thereupon be treated as one made u/s 23(3)?

5. The first question is an important one and is, whether Section 34 is applicable to the circumstances of this case.

6. The Commissioner of Income Tax is of opinion that Rs. 25,000 was chargeable to super tax and has escaped assessment. "It has been argued very eloquently on behalf of the assessee that this interpretation by the Income Tax Department is wrong and that no portion of the Income Tax of the assessee has escaped assessment".

7. The argument of the learned Counsel is based on the meaning of the words 'assess' and 'assessment' and he points out that the words assess and 'assessment' have been used in Section 23 of the Act in the sense of "finding out the total income of an assessee such income being liable to be taxed".

8. We have consulted Murray's English Dictionary and we find that the words "assess" and "assessment" have two meanings. The word "assess" means, (1) "To settle, determine, or fix the amount of (taxation, or fine, etc.) to be paid by a person..."(2). "To estimate officially the value of (property or income) for the purpose of apportioning its share of taxation". Similarly 'assessment' has got two meanings corresponding to the two meanings quoted above of the word 'assess'.

9. The words 'assess' and 'assessment' being capable of being read in two senses, we ought to expect that the Income Tax Act has used the words "assessment" and "assess" in the same