JUDGMENT

1. as follows :-

(1) Whether assessment was validly made under section 34 of the Act upon the income, after the proceedings events, namely :-

(i) The assessee included said income in return under Section 22(2).

(ii) The Income Tax Officer making assessment upon Hindu undivided family, of which Lala Madan Mohan Lal is the Karta held the said income to be income of the family, had included it in assessment thereon.

(iii) The Income Tax Officer making assessment upon the present assessee thereupon did not include the said income in his assessment under Section 23(3).

(iv) The Hindu undivided family succeeded in appeal against the inclusion of the said income in their assessment.

Under Section 66(1) he has referred the following question :-

"if the answer to the first question be in negative, will there be any limitation of time (other than general reasonableness) upon an order to be duly made under Section 33 of the Act in review of the initial assessment under section 23(3) and adding the said income thereto."

The principal question with which we are really concerned is the one under Section 66(2). The answer to this question depends on the interpretation that can be put on the words "escaped assessment as used in section 34 of the I income Tax Act. Section 34 reads as follows :-

"If for any reason income, profits or gains chargeable to income tax has escaped assessment in any year or has been assessed at too low a rate, the Income Tax Officer may, at any time, within one year of the end of that year, serve on the person liable to pay tax on such income, profits or gains * * * a notice containing all or any requirements which may be included in a notice under sub-section (2) of section 22 and may proceed to assess or to re-assess such income, profits or gains and the provisions of this Act shall so far as may be, apply accordingly as if the notice was a notice issued under that sub-section :

Provided that the tax shall charged at the rate at which it would have been charged, had the income, profits or gains not escaped assessment or full assessment as the case may be."

The assessee contends that this section can be invoked only if income is omitted to be duly returned and not if income having been duly returned is left out either intentionally or unintentionally by the Income Tax Officer concerned. The Commissioner, on the other hand maintains that the section is wide enough to cover every case of non-assessment.

On behalf of the appellant reliance is mainly placed on the following authorities :- Kishen Kishore v. Commissioner of Income Tax, Burma v. U Lu Nyo; Burn & Co., In re; Rajendra Nath v. Commissioner of Income Tax, Bengal. In Kishen Kishore v. Commissioner of Income Tax, Punjab, the Income Tax Officer assessed K to income tax as the head of an undivided Hindu family, consisting of himself and his son, on the income of the family during the year previous to tax year. On review, the Commissioner set aside the assessment and directed the Income Tax Officer to assessed K as an individual; whereupon the Income Tax Officer serve upon K a notice under Section 22(2) read with section 34 of the Income Tax Act, calling upon him to submit a declaration of his total income from all sources for the previous year for the purpose of re-assessing him for tax year. It was contended on behalf of the assessee that as his income could not be said to have escaped assessment, Section 34 did not apply. JAILAL, J., who delivered the judgment, in which MONROE, J., concurred, remarked that it was clear from the facts of the case that when the assessment was originally made for the first time on the assessee as the head of the undivided Hindu family, no part of the income was alleged to have been concealed by him and that the income which was sought to be assessed was, therefore, disclosed and was known to the income tax authorities. In these circumstances, it was held that the income could not be said to have escaped during the previous year, the exp