JUDGMENT G. Kumara Pillai, J. 1. This is a reference made by the Commissioner of Agricultural Income Tax (Board of Revenue), Kerala, under S.60 of the Travancore Cochin Agricultural Income Tax Act, 22 of 1950, and it relates to the assessment of one A. S. Suppan Chettiar, Pankajam House, Bodinayakanoor, for the years 1951-52 and 1952-53 under the said Act. For the four years 1951-52, 1952-53, 1953-54 and 1954-55 he was assessed to agricultural income tax by an order of the Inspecting Assistant Commissioner, Kottayam, dated 31-1-1955. Out of the four assessments made by that order, two, namely, the assessments for 1951-52 and 1952-53, were interfered with in revision under S.34 of the Act by the Commissioner of Agricultural Income Tax in 1957, and that interference has caused the application for this reference. 2. The accounting period for the assessments of 1951-52 and 1952-53 were the years ending 31-3-1951 and 31-3-1952. Prior to these accounting periods Suppan Chettiar had transferred some properties belonging to him in favour of two of his sons, Natarajan and Mohan, who were minors on the date of the transfer and also during the accounting periods for the four assessments. On account of the said transfers the income from the transferred properties was not included in Suppan Chettiar's assessment for the four years 1951-52, 1952-53, 1953-54 and 1954-55, made by the order of 31-1-1955, and he was assessed by that order only on the income from his remaining properties. For each of these four years the Agricultural Income Tax Officer made three assessments, one in respect of properties standing in Suppan Chettiar's name, another in respect of properties transferred to Natarajan, and the third in respect of the properties transferred to Mohan -- the first of these assessments being made on Suppan Chettiar in his individual capacity and the second and third being made in respect of Natarajan and Mohan respectively with Suppan Chettiar as their guardian after the service of the demand notices in their guardian. After the service of the demand notices in pursuance of these assessments and the realisation of the taxes thereunder the Agricultural Income Tax authorities took the view that three separate assessments should not have been made on Suppan Chettiar and his minor sons and that Suppan Chettiar should have been assessed for each year not merely on the income from the properties standing in his name but also on the income from the properties transferred to his sons a course which would have led to the realisation of a larger amount by way of tax, since the rate of taxation would be higher if all the three incomes were clubbed together and taxed by one assessment than when they were assessed separately. The Agricultural Income Tax Officer therefore took steps under S.35 of the Travancore Cochin Agricultural Income Tax Act to reopen Suppan Chettiar's assessments for the four years and make re-assessments on him including in his assessments the income from the properties transferred to his sons. But, as by then the time limit prescribed by S.35 for taking action thereunder had expired so far as the assessments of 1951-52 and 1952-53 were concerned, the Agricultural Income Tax Officer reopened Suppan Chettiar's assessments and made re-assessments on him only for the years 1953-54 and 1954-55, and in respect of the years 1951-52 and 1952-53 the Inspecting Assistant Commissioner of Agricultural Income Tax and Sales Tax, Kottayam, moved the Commissioner of Agricultural Income Tax (Board of Revenue) to revise the assessments suo moto under S.34 (1) of the Act and include in his assessments the income from the properties transferred to his sons. The motion was made by way of a letter dated 9-1-1957 from the Inspecting Assistant Commissioner of Agricultural Income Tax and Sales Tax to the Secretary, Board of Revenue (Agricultural Income Tax and Sales Tax). The material portion of that letter reads as follows : "It is reported by the Agricultural Income Tax Officer that for the assessment years 1951-52, 52-53, 53-54 and 54-55 Sri A. S. Suppan Chettiar was deriving agricultural income from properties in his name and also from properties transferred to his sons M/s. S. Natarajan and S. Mohan who were minors then. The assessments for the above years were separately made. The assessments for the above years were separately made. As per the provisions contained in S.82(a) and 9(2)(iv) and 9(2)(b) of the Agricultural Income Tax Act, 1950, the agricultural income derived by the assessee from the properties in the name of the minors, which were transferred to them by the assessee had to be included in his agricultural income for purposes of assessment. Hence the income derived by the assessee from assets transferred to the said minors had escaped assessment at his hands though they were taxed separately. The mistake in the application of the law cannot be regarded as a mistake apparent from the records. Hence action under S.36 of the Act cannot be taken to rectify the above mistake in procedure. Action under S.35 was therefore instituted by the Agricultural Income Tax Officer to assess the escaped income at the hands of Sri. A. S. Suppan Chettiar. Accordingly, the assessments from 53-54 were reopened and revised. But the assessments for 1951-52 and 1952-53 cannot be reopened under this section, as these relate to periods prior to three years from trie financial year. Therefore the only remedy in the Act to tax the income of the minors at the hands of the assessee for the above years is to move the Commissioner of Agricultural Income Tax to revise the assessments already made suo moto under S.34(1) of the Act. In the circumstances necessary action may be taken to revise the assessment under S.34(1) and include the income of the minors." In pursuance of this letter the Commissioner initiated proceedings under S.34 and, after notice of the revision proceedings to Suppan Chettiar, passed an order on 2-4-1957 directing: "The assessment for 1951-52 and 1952-53 shall, therefore, be modified including the income from the properties transferred to the minor sons. The Agricultural Income Tax Officer, Special Circle, Kottayam, will make revised assessment according to law including the income from the properties allotted to the two minor sons of the assessee also and issue revised demand notices accordingly." After this order, the Agricultural Income Tax Officer, Special Circle, Kottayam, passed another order on 29-4-1957 purporting to make revised assessments in pursuance of the Commissioner's order and including the income of the properties transferred to Natarajan and Mohan also in Suppan Chettiar's assessments for the years 1951-52 and 1952-53 and thereby enhancing his assessments for the two years and taxing him at a higher rate. On 3rd June 1957, Suppan Chettiar filed a petition before the Commissioner of Agricultural Income Tax stating that four questions of law arose out of the order of 2-4-1957, and requiring him to state a case and refer it to the High Court under S.60 of the Agricultural Income Tax Act. This reference has been made by the Commissioner of Agricultural Income Tax in pursuance of that petition, and the four questions referred to us are: "(1) Whether on the facts of this case, the Commissioner is empowered to pass the above order under the powers conferred on him by S.34 of the Act? (2) Whether the powers of the Commissioner in the matter of invoking his suo moto jurisdiction is subject to the other provisions of the Act as regards the period of limitation ? (3) Whether the Commissioner is entitled to reopen an assessment in regard to a financial year three years prior to the reopening? (4) Whether, on the facts of this case, the direction issued by the Commissioner reading as under: 'The Agricultural Income Tax Officer, Special Circle, Kottayam, will make revised assessments according to law including the income from the properties allotted to the two minor sons of the assessee also and issue revised demand notices accordingly' is without jurisdiction?" 3. S.34, 35 and 36 of the Travancore Cochin Agricultural Income Tax Act, 22 of 1950, read as follows : "34. S.34, 35 and 36 of the Travancore Cochin Agricultural Income Tax Act, 22 of 1950, read as follows : "34. (1) The Commissioner may, of his own motion or on application by an assessee, call for the record of any proceeding under this Act which has been taken by any authority subordinate to him and may make such enquiry or cause such enquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit: Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard : Provided further that an order passed declining to interfere shall not be deemed to be an order prejudicial to the assessee. (2) Any order passed under sub-s.(1) shall be final subject to any reference that may be made to the High Court under S.60. 35. If for any reason agricultural income chargeable to tax under this Act has escaped assessment in any financial year or has been assessed at too low a rate, the Agricultural Income Tax Officer may, at any time within three years, of the end of that year serve on the person liable to pay the tax or in the case of a company on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-s.(2) of S.17 and may proceed to assess or re-assess such income and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section : Provided that the tax shall be charged at the rate at which it would have been charged if such income had not escaped assessment or full assessment, as the case may be. 36. 36. (1) The Authority which passed an order on appeal or revision may at any time within three years from the date of such order passed by him on appeal or in revision, and the Agricultural Income Tax Officer may at any time within three years from the date of any assessment or refund order passed by him, of his own motion, rectify any mistake apparent from the record of the appeal, revision, assessment or refund, as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee: Provided that no such rectification shall be made having the effect of enhancing an assessment or reducing a refund unless the appellate or revisional authority or the Agricultural Income Tax Officer, as the case may be, has given notice to the assessee of his intention so to do and has allowed him a reasonable opportunity of being heard. (2) Where any such rectification has the effect of reducing the assessment, the Agricultural Income Tax Officer shall make any refund which may be due to such assessee. (3) Where any such rectification has the effect of enhancing the assessment or reducing a refund, the Agricultural Income Tax Officer shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable and such notice of demand shall be deemed to be issued under S.30 and the provisions of this Act shall apply accordingly." 4. On behalf of the assessee, it was contended before us that once the assessments on Suppan Chettiar for the years 1951-52 and 1952-53 had been made and become final without the income from the properties transferred to Natarajan and Mohan for the two corresponding accounting periods being included in those assessments, if the income from those transferred properties during the accounting periods in question was liable to be included in Suppan Chettiar's assessments and had been wrongly left out of these assessments, such income is, so far as Suppan Chettiar is concerned, income chargeable to tax under the Agricultural Income Tax Act which has escaped assessment in the financial years 1951-52 and 1952-53, and so, the assessments already made on Suppan Chettiar for 1951-52 and 1952-53 cannot be reopened and re-assessments cannot be made on him for those years including the income which has escaped assessment (i.e., income from the transferred properties) except in the manner prescribed by S.35 of the Travancore Cochin Agricultural Income Tax Act and subject to the limitations imposed thereby that is to say, the assessments can be reopened and re-assessments including the incomes which have escaped assessment can be made only by the Agricultural Income Tax Officer, and even he can do it only after service of the notice prescribed by S.35 which has to be done within three years of the end of the year of assessment. It was urged that since the notice under S.35 has to be served within three years of the financial year the assessment for which is being sought to be reopened, and since the assessment year 1951-52 would end on 31-3-1952 and the assessment year 1952-53 would end on 31-3-1953 it would not be possible to serve the notice prescribed by S.35 for reopening the two assessments and making the re-assessments after 31-3-1955 and 31-3-1956, and so, after 31-3-1955 and 31-3-1956 respectively, the assessments of 1951-52 and 1952-53 cannot be reopened at all and no re-assessment can be made in respect of those years including the incomes which had escaped assessments. It was contended that the order of the Commissioner of Agricultural Income Tax, dated 2-4-1957, directing the Agricultural Income Tax Officer to make revised assessments including the income from the transferred properties is, therefore, illegal and unsustainable. It was contended that the order of the Commissioner of Agricultural Income Tax, dated 2-4-1957, directing the Agricultural Income Tax Officer to make revised assessments including the income from the transferred properties is, therefore, illegal and unsustainable. According to the assessee, in revision under S.34 of the Act, the Commissioner cannot himself reopen an assessment which has already been made and become final and make a re-assessment including the income which has escaped assessment, he can only direct the Agricultural Income Tax Officer to reopen the assessment and make re-assessment under S.35, and since the time for service of the notice under S.35 had elapsed even before the Commissioner passed the order of 2-4-1957 and directed the Agricultural Income Tax Officer to make a re-assessment and it was not possible to serve the notice required by S.35 within the time prescribed by that section the Commissioner was wrong and acted illegally in directing the Agricultural Income Tax Officer to make the revised assessment. 5. The learned Government Pleader appearing on behalf of the Agricultural Income Tax Department contended that as the income of the properties transferred to Natarajan and Mohan had been separately assessed for 1951-52 and 1952-53 the income from those properties had not actually escaped assessment and could not therefore be said to be income which has escaped assessment, and so, S.35 has no application at all to the present case. He contended that the Commissioner was therefore competent to pass the order of 2-4-1957 under S.34. The assessee's counsel controverted the contention that the income from the properties transferred to Natarajan and Mohan was not income which has escaped assessment in the relevant financial years and contended that, even on the assumption that such income was not income which has escaped assessment, the Commissioner's order would still be illegal. He contended that an assessment which has become final can be reopened and a revised assessment can be made in respect of it only under S.35 and 36 of the Act and that the Commissioner is not competent, in revision under S.34, to reopen such an assessment and make a revised assessment or direct the assessment to be reopened and a re-assessment to be made except in cases in which such a thing can properly be done under S.35 and 36 of the Act. 6. 6. The provisions of S.34, 35 and 36 of the Travancore Cochin Agricultural Income Tax Act are similar to the provisions of S.33, 34 and 35 respectively of the Indian Income Tax Act of 1922 as it stood before the amending Act of 1939. So far as the provisions relating to the Commissioner's powers to revise suo moto proceedings of subordinate authorities and in respect of re-assessment of income which has escaped assessment in any year are concerned, the only difference between the Travancore Cochin Agricultural Income Tax Act and the Indian Income Tax Act as it stood before the amendments of 1939 is that the time limit prescribed under S.35 of the Travancore Cochin Act for the service of notice enjoined by that section is three years whereas the time limit prescribed by the corresponding section of the Indian Act, i. e., S.34, for the service of similar notice is only one year. In all other respects the provisions in the two Acts relating to the powers of the Commissioners for revising suo motu the proceedings of the subordinate authorities and in respect of re-assessment of income which has escaped assessment in any year are practically the same. S.33, 34 and 35 of the Indian Income Tax Act as they stood before the amendments of 1939 read as follows: "33. (1) The Commissioner may of his own motion call for the record of any proceeding under this Act which has been taken by any authority subordinate to him or by himself when exercising the powers of an Assistant Commissioner under sub-s.(4) of S.5. (2) On receipt of the record the Commissioner may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks fit: Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard. x x x x 34. x x x x 34. 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, or, in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-s.(2) of S.22, and may proceed to assess or 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 were a notice issued under that sub-section. Provided that the tax shall be 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. 35. (1) The Commissioner or Assistant Commissioner may at any time within one year from the date of any order passed by him in appeal or, in the case of the Commissioner in the revision under S.33 and the Income Tax Officer may, at any time within one year from the date of any demand made upon an assessee, on his own motion, rectify any mistake apparent from the record of the appeal, revision or assessment, as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by the assessee : Provided that no such rectification shall be made having the effect of enhancing an assessment unless the Commissioner, the Assistant Commissioner or the Income Tax Officer, as the case may be, has given notice to the assessee of his intention so to do and has allowed him a reasonable opportunity of being heard. (2) Where any such rectification has the effect of reducing the assessment, the Income Tax Officer shall make any refund which may be due to such assessee. (2) Where any such rectification has the effect of reducing the assessment, the Income Tax Officer shall make any refund which may be due to such assessee. (3) Where any such rectification has the effect of enhancing the assessment, the Income Tax Officer shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable, and such notice of demand shall be deemed to be issued under S.29, and the provisions of this Act shall apply accordingly." 7. There are a large number of reported cases under the Indian Income Tax Act as to when income can be said to have escaped assessment. That question has several aspects and raises problems, sometime very difficult and sometimes very easy. It may present no difficulty at all in a case in which the Income Tax Department had not issued any notice under S.22 of the Indian Income Tax Act (section 17 of the Travancore Cochin Agricultural Income Tax Act) to the assessee within the year of assessment for a return of his income and had made no assessment also on him for that year, or in a case in which the assessee had cancelled a particular source of income in his return and the assessment was therefore made on him without taking into consideration the income from that source. But in certain other cases (e. g., where the department, having made an assessment after allowing the assessee's claim to exclude a particular source or class of income or after deducting a part of the income from one source as an allowable expense, seeks to reopen the assessment and make a re-assessment including the deducted income or part thereof) the question has given rise to some very conflicting decisions. The aspect of the question with which we are concerned in the present case is whether income from a particular source or particular properties which has been included in the assessment on one assessee can be said to be income which has escapad assessment within the meaning of S.34 of the Indian Act (section 36 of the Travancore Cochin Act) in the proceedings for reopening the assessment on a different assessee and making a re-assessment on that assessee including the income for which the first assessee had been assessed. According to the learned Government Pleader, in such a case, the income which is sought to be included in the re-assessment will not be income which has escaped assessment since that income has already been included in the assessment of another assessee, though improperly or erroneously, and it will only be a case of a wrong or improper assessment and not a case of income which has escaped assessment. On the other hand, the assessee's counsel contends that the question whether the income has escaped assessment or not has to be considered in relation to the assessee whose assessment is sought to be reopened and upon whom the re-assessment including this item of income is to be made and that if in respect of that assessee the income was not included in his original assessment it is, after the first assessment has once become final, income which has escaped assessment. 8. This aspect of the question has come up directly for consideration in the Commissioner of Income Tax, Burma v. Ved Nath Singh, (1940) 8 ITR 22, which is an almost parallel case. The facts of that case were as follows: One Ved Nath Singh was assessed to income tax in his own name in respect of the income arising out of an oil refinery. His father, Baij Nath Singh, was the owner of certain oil wells. After the death of the father, who died leaving a widow and a daughter and an only son (Ved Nath Singh), the income arising from the oil wells was assessed to income tax separately in the name of the estate of the late Baij Nath Singh while the income from the oil refinery was assessed in Ved Nath Singh's name. But, after the decision of the Privy Council in Kalyanji Vithal Das v. Commissioner of Income Tax, Bengal, 1937 (1) Cal, 653 P.C. which held that the income from the estate of the deceased father should be treated as forming part of the son's income even though the father had left behind a widow and a daughter also, the Commissioner of Income Tax took proceedings under S.33 of the Burma Income Tax Act (which corresponds to S.33 of the Indian Income Tax Act) "to put the matter right" by reopening Ved Nath Singh's assessment and making a re-assessment on him including the income from the estate of Baij Nath Singh. By the time the Commissioner, started proceedings under S.33 the original assessment of Ved Nath Singh had become final and the time limit for the service of the notice required by S.34 of the Burma Act, corresponding to S.34 of the Indian Act, had expired. Dealing with the contention that the income from the oil wells which was sought to be included in the re-assessment on Ved Nath Singh was not income which had escaped assessment as it had been included in the assessment in the name of Baij Nath Singh's estate, and the case was not therefore one falling under S.34 of the Burma Income Tax Act, Robert, C. J., with whom the other two members of the Full Bench agreed, said : "As explained in Sheik Abdul Kadir Maracayar v. Commissioner of Income Tax, Madras, 2 ITC 372, the revising authority can revise only the particular assessment under consideration, and can act only on the materials available in respect of that assessment. The Commissioner has expressed the view that in this case there has been an under assessment, and that he has authority under S.33 to rectify that matter. But, in my opinion, he has not assessed correctly what has hitherto been wrongly assessed, but has assessed income which has hitherto escaped assessment. Income has 'escaped assessment' within the meaning of S.4, when it has not been assessed in the assessment under consideration: it is immaterial that it has been assessed in some other assessments. The Commissioner was therefore bound by the provisions of S.34. The meaning of these words was carefully examined by Page, C. J., in Commissioner of Income Tax, Burma v. N. N. Burjorjee, ILR 9 Rang. 161 at 163. He said: 'Now the question that falls for determination is, what is the meaning of the words 'escaped assessment' in S.34 ? On behalf of the assessee it is contended that assessment proceedings at any rate up to the stage at which the order of assessment is passed under S.23(4), must be completed before the end of the year of assessment, i. e. the year in which the tax is payable, and that otherwise the assessment proceedings ipso facto abate. In our opinion, this contention is unwarrantable, and cannot be accepted. In our opinion, this contention is unwarrantable, and cannot be accepted. We are of opinion that S.34 is applicable to cases in which either no assessment at all has been made upon the person who received the income, profits or gains liable to assessment, or, where an assessment has been made in the course of the year, but some portion of the income, profits or gains of such assessee for some reason or other has not been included in the order of assessment; such income is income which has 'escaped assessment' in the year, and falls within the ambit of S.34 of the Act.' Here there are certainly two assessments in existence. The income from the father's estate has escaped from the assessment made in respect of Ved Nath Singh personally". (underlining ours). 9. The learned Government Pleader relied in support of his contention on certain observations of the Privy Council in Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal AIR 1934 PC 30 : (1934) 2 ITR 71. The facts of that case were as follows:-- For the assessment for the year 1927-28 the Income Tax authorities sent two separate notices for submission of the return of the income under S.22(2) of the Indian Income Tax Act to two firms known as Burn & Co. and Martin & Co. Martin & Co. submitted their return on 24th September 1927 and Burn & Co. submitted their return on 13th January 1928. Although the two firms were separate firms the partners of Martin & Co. had purchased Burn & Co. also before the accounting period, but this fact was not known to the Income Tax Authorities when they issued the notices calling for the returns. Learning of it later, the Income Tax Officer assessed Martin & Co. on 25th February 1929 on the combined incomes returned by Martin & Co. and Burn & Co. and took no further action on the return submitted by Burn & Co. Against their assessment Martin & Co. appealed complaining that, although the partners were the same, Burn & Co. was a separate business and a separate firm and that as the partners of Martin & Co. had not purchased Burn & Co. with funds belonging to Martin & Co. and the two firms were separate, Martin & Co. were not liable to be assessed on the income of Burn & Co. also. was a separate business and a separate firm and that as the partners of Martin & Co. had not purchased Burn & Co. with funds belonging to Martin & Co. and the two firms were separate, Martin & Co. were not liable to be assessed on the income of Burn & Co. also. although this appeal was decided against Martin & Co., ultimately, as a result of a reference made to the High Court, the assessment of Martin & Co. was amended by eliminating therefrom the income of Burn & Co. Thereafter, on 8th November 1930, an assessment was made on Burn & Co. on their income was returned by them on the 13th January 1928. From this assessment Burn & Co. appealed, and, finally, after a reference to the High Court the matter came before the Privy Council regarding the validity of the assessment made on 8th November 1930 on Burn & Co. on their income as stated in their return of 13th January 1928. One of the contentions of Burn & Co. was that except in cases falling under S.34 of the Indian Income Tax Act the Income Tax Officer had to make the assessment within the year, of assessment itself, i. e., before the expiry of that year, and that as they (Burn and Co.) were not assessed in 1927-28 their income of that year had escaped assessment and so, after 1927-28, they could be assessed for that year only by proceedings taken under S.34 of the Indian Act. They contended that the assessment of the 8th November 1930 was not made under section 34 as the notice prescribed by that section was not sent to them and that that assessment was invalid as it was not made in pursuance of S.34. The observations in Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal AIR 1934 P.C. 30 relied upon by the Government Pleader occur in the passage of Their Lordships' Judgment repelling this contention. At page 33 of the report Their Lordships said : "The appellants however submit that this is a case of income escaping assessment within the meaning of S.34. Assessment, they argue, is a definite act, indeed the most critical act in the process of taxation. At page 33 of the report Their Lordships said : "The appellants however submit that this is a case of income escaping assessment within the meaning of S.34. Assessment, they argue, is a definite act, indeed the most critical act in the process of taxation. If an assessment is not made on income within the tax year then that income, they submit, has escaped assessment within that year, and can be subsequently assessed, only under S.34 with its time limitation. This involves regarding the expression 'has escaped assessment' as equivalent to 'has not been assessed'. Their Lordships cannot assent to this reading. It gives too narrow a meaning to the word 'assessement' and too wide a meaning to the word 'escaped'. That the word 'assessment' is not confined in the statute to the definite act of making an order of assessment appears from S. 66 which refers to 'the course of any assessment'. To say that the income of Burn & Co., which in January 1928 was returned for assessment and which accepted as correctly returned though it was erroneously included in the assessment of Martin & Co., has 'escaped' assessment in 1927-28, seems to Their Lordships an inadmissible reading. The fact that S. 34 requires a notice to be served calling for a return of income which has escaped assessment strongly suggests that income which has already been duly returned for assessment cannot be said to have 'escaped', assessment within the statutory meaning. Their Lordships find themselves in agreement with the view expressed in Lachiram Basantlal v. Commissioner of Income Tax, Bengal AIR 1931 Cal. 545 : 5 I.T.C. 114 by the learned Rankin, C. J., at page 118 (of 5 ITC): 'Income has not escaped assessment if there are pending at the time proceedings for the assessment of the assessee's income which have not yet terminated in a final assessment thereof. It may be that if no notice calling for a return under S. 22 is issued within the tax year then S. 34 provides the only means available to the Crown of remedying the omission, but that is a different matter. Their Lordships find it sufficient for the disposal of the appeal to hold, as they do, that the income of Burn & Co. Their Lordships find it sufficient for the disposal of the appeal to hold, as they do, that the income of Burn & Co. did not 'escape assessment' in the year 1927-28 within the meaning of S. 34 and that consequently the serving of a notice within the year 1928-29 was not an essential pre-requisite of a valid assessment of that income................". The learned Government Pleader contends that it was because the income of Burn & Co. was included in the assessment of Martin & Co. that Their Lordships have said in the above passage that the income of Burn & Co. has not escaped assessment, and he relies particularly upon the sentence: "To say that the income of Burn & Co. which in January 1928 was returned for assessment and which was accepted as correctly returned though it was erroneously included in the assessment of Martin & Co. has escaped assessment in 1927-28 seems to Their Lordships an inadmissible reading". Relying upon this passage it is contended that, when a particular income had been included in the assessment of one person for any year, in the proceedings for reopening the assessment of a different person for the purpose of making a re-assessment including that particular income also, such income cannot be said to be income which has escaped assessment. 10. But Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal, AIR 1934 PC 30 was not a case in which an assessment already made on a particular assessee was reopened and a re-assessment was made on that assessee. Their Lordships were concerned in that case with the assessment made on Burn & Co. on 8th November 1930 for the year 1927-28, and for that year there had been no prior assessment at all on Burn & Co. Both Martin & Co. and Burn & Co. had duly submitted their returns for the year 1927-28, Martin & Co. on 24th September 1927 and Burn & Co. on 13th January 1928. Martin & Co. alone were at first assessed for that year, and the income of Burn & Co. was wrongly included in that assessment. After the appeal against this assessment, by Martin & Co. and the subsequent reference to the High Court which resulted in their assessment being modified by the elimination of the income of Burn & Co. from the assessment, their assessment alone (i.e., the assessment of Martine & Co. was wrongly included in that assessment. After the appeal against this assessment, by Martin & Co. and the subsequent reference to the High Court which resulted in their assessment being modified by the elimination of the income of Burn & Co. from the assessment, their assessment alone (i.e., the assessment of Martine & Co. alone) had become final. In the subsequent proceedings, which ultimately led to the appeal before the Privy Council, the Income Tax authorities did not seek to reopen the assessment of Martin & Co. and make a re-assessment on them. They sought in those proceedings to make only an assessment on Burn & Co. on whom no assessment at all had been made for 1927-28. It was not therefore a case of reopening an assessment which had already been made and become final and making a reassessment but a case of making the assessment for the first time itself on the assessee concerned (Burn & Co.) for the relevant financial year. In the passage extracted above from the judgment in Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal AIR 1934 P.C. 30 and in the two paragraphs preceding that passage Their Lordships repelled the contention that the assessment had to be made or completed within the year of assessment itself, taking the view that, when a notice under S.22 calling for the return of the assessee's income is issued within the year of assessment and assessment proceedings initiated thereby, the assessment itself can be made subsequently, even after the expiry of the assessment year. Since, in pursuance of the notice under S.22, Burn & Co. had duly submitted their return for 1927-28 during that year itself (on 13th January 1928) and the Income Tax authorities had not passed any final order on that return and had only wrongly included their income in the assessment on Martin & Co. without passing any final order on the return submitted by Burn & Co., Their Lordships further held that the assessment proceedings, in respect of Burn & Co. had not been concluded and were still pending on the 8th November 1930 when the Income Tax authorities made the assessment on Burn & Co. and that, as the assessment proceedings of Burn & Co. had not been concluded and were still pending on the 8th November 1930 when the Income Tax authorities made the assessment on Burn & Co. and that, as the assessment proceedings of Burn & Co. were pending till 8th November 1930, it could not be said that any income of theirs had escaped assessment even though such income had been wrongly included in the assessment on Martin & Co. That this is the meaning of what Their Lordships have said at page 33 of the report in AIR 1934 P. C. 30 would be clear when the extract given above from the judgment is read with the paragraphs preceding and succeeding it, and even when the sentence relied upon by the learned Government Pleader is read with the two next sentences, in the latter of which is quoted the passage from the judgment of Rankin, C. J., "Income has not escaped assessment if there are pending at the time proceedings for the assessment of the assessee's income which have not yet terminated in a final assessment thereof." with which their Lordships said they were in agreement. All that their Lordships have really laid down in Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal AIR 1934 PC 30 is that, when proceedings for assessing a particular person for any year has been initiated and he has submitted a return of his income in pursuance of the notice under S.22, no income of his can be said to have escaped assessment so long as the assessment proceedings in respect of him for that year are pending and no final order has been passed therein even though the income actually returned by him was erroneously included in the assessment of another person. 11. The argument which the learned Government Pleader advanced before us, based on the observations of the Privy Council set out in paragraph 9 above, is not a new one. It was advanced in several earlier cases in other High Courts, and in all of them it has been repelled. In Commissioner of Income Tax, Burma v. Ved Nath Singh (1940) 8 ITR 222 referred to in paragraph 8 above, it has been dealt with as follows: "But the point of Rajendra Mukherjee's case (ILR 61 Cal. It was advanced in several earlier cases in other High Courts, and in all of them it has been repelled. In Commissioner of Income Tax, Burma v. Ved Nath Singh (1940) 8 ITR 222 referred to in paragraph 8 above, it has been dealt with as follows: "But the point of Rajendra Mukherjee's case (ILR 61 Cal. 285- AIR 1934 PC 30 ) was that there were two separate returns, one in respect of the income of Martin & Company and one in respect of the income of Burn & Company and no assessment had been made on the return in respect of the income of Burn & Company and therefore it was still open to the Income Tax authorities to make an assessment in respect of this income. In the present case, two final assessments had been made, one in respect of Ved Nath Singh's personal return and one in respect of the return relating to the income of the (supposed) Hindu undivided family. The income of the latter had therefore escaped assessment in the assessment on the former". 12. Dealing with same argument in Kunwar Bishwanath Singh v. Commissioner of Income Tax AIR 1942 All. 295 : 1942 (10) ITR 322, the Allahabad High Court, after saying "What is, however contended is that income in the present case has not escaped assessment and reliance in the main is placed on the case of Rajendra Mukherjee v. Commissioner of Income Tax, Bengal, more particularly on the passage which occurs at page 290 et seq (6 ITR 265- AIR 1934 PC 30 )", and stating the facts of Rejendranath Mukherjee's case and quoting the passage from the Privy Council judgment extracted in paragraph 9 above, has said at page 333 of the report: "We think it was argued for the assessee, Burn & Co. that, since there had been no assessment order in respect of this income during the year of assessment their income had escaped assessment and then assessment under S.34 alone could be made subsequently, subject to its time limit. The Privy Council repelled that argument. They held that since Burn & Co. had duly made a return of their income in response to a notice it could not be said that their income had escaped assessment within the statutory meaning. The Privy Council repelled that argument. They held that since Burn & Co. had duly made a return of their income in response to a notice it could not be said that their income had escaped assessment within the statutory meaning. Their Lordships then went on to say that they found themselves in agreement with the view expressed In re Lachiram Basant Lal by the learned Chief Justice (Rankin) : 'Income has not escaped assessment if there are pending at the time proceedings for the assessment of the assessee's income which have not yet terminated in a final assessment thereof.' It will thus appear that Their Lordships were of the opinion that the assessment of Burn & Co. was pending all along and there was no necessity to issue a notice under S.34. They further observed: 'It may be that, if no notice calling for a return under S.22, is issued within the tax year, then S.34 provides the only means available to the Crown of remedying the omission, but that is a different matter.'" 13. The Bombay High Court also has considered Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal AIR 1934 PC 30 in Chimanram Motilal v. Commissioner of Income Tax, 1943 (11) ITR 44. Referring to that case, Kania, J., has said therein: "In that case an assessment had made his return and while the consideration of that return was pending another assessee's assessment was considered. It was found that a certain item which was included in that (second) return should not be included in that return but should be put in the first return. The argument before the Privy Council was that as one year had expired there was no justification for including this item under the first return. That argument was negatived, and, in my opinion, there can be no two opinions on the question. The only reference to S.34 made by the Privy Council was because it was used as an argument in support of the contention urged before them. Their Lordships had no occasion to consider the effect and meaning of the words 'escaped assessment.' They only negatived the contention that the words 'has escaped assessment' were equivalent to 'has not been assessed'. 14. Their Lordships had no occasion to consider the effect and meaning of the words 'escaped assessment.' They only negatived the contention that the words 'has escaped assessment' were equivalent to 'has not been assessed'. 14. The Patna High Court had occasion to consider Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal AIR 1934 PC 30 in State of Bihar v. Kameshwar Singh 1952 (21) ITR 382 which was a case under the Bihar Agricultural Income Tax Act which also contains provisions similar to S.33 and 34 of the Indian Income Tax Act as it stood before the amendments of 1939, and understood the observations of the Privy Council in the same light as the Rangoon and Allahabad High Courts. Ramaswami, J., said in that case: "It was held by the Judical Committee that the assessment made under S.23(1) on Burn & Co., on 8th November 1930, was a legal assessment. It was contended on behalf of the appellant that an assessment once begun if not completed within the year could not be made unless it was done under S.34. The argument was negatived on the ground that S.23 under which assessment was made contained no limitation of time during which assessment could be made. The judicial Committee observed that income had not escaped assessment within the meaning of S.34 since proceedings for assessment were pending and no final order had been made. The ratio of the case is that an assessment could be made under S.23(1) of the Act more than a year, in fact at any time after the assessment year if in the mesne time no fraud assessment has been made. But Dr. Sultan Ahmad referred to the dictum at page 16 : "To say that the income of Bum & Co., which in January 1928, was returned for assessment and which was accepted as correctly returned, though it was erroneously included in the assessment of Martin & Co., has 'escaped' assessment in 1927-28 seems to their Lordships an inadmissible reading. The fact that Section 34 requires a notice to be served calling for a return of income which has escaped assessment strongly suggests that income which has already been duly returned for assessment cannot be said to have 'escaped' assessment within the statutory meaning. Their Lordships find themselves in agreement with the view expressed in In re Lachiram Basantlal (ILR 58 Cal. Their Lordships find themselves in agreement with the view expressed in In re Lachiram Basantlal (ILR 58 Cal. 909) by the learned Chief Justice (Rankin) : 'Income has not escaped assessment if there are pending at the time proceedings for the assessment of the assessee's income which have not yet terminated in a final assessment thereof.' But the passage must be read in the context of the whole report. When the Judicial Committee remarked that the expression 'escaped assessment' was not equivalent to 'has not been assessed the Judicial Committee meant that the expression 'escaped assessment' can have no possible application to a case where the course of assessment was not yet complete and there had in fact been no final assessment order. The Judicial Committee was more concerned with the meaning of the word assessment to which it gave wide interpretation than with defining the exact meaning of the word 'escaped'. All that the Judicial Committee held about the latter word was that it was not wide enough to include income as to which no final assessment order had been made and as to which assessment proceedings was still running its course." 15. A Full Bench of the Lahore High Court had to consider Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal AIR 1934 PC 30 in Madan Mohan v. Commissioner of Income Tax AIR 1935 Lah. 742. In that case there were two original assessments -- one on Lala Madan Mohan Lal in his individual capacity and the other on his joint family. One item of income which was disclosed in the return submitted by Lala Madan Mohan Lal in his individual capacity was not included in the Original assessment made on him as the Income Tax Officer considered that it was income of the joint family and made the assessment on the joint family including in it that income also. As the result of an appeal filed by the Joint family this item of income was eliminated from its assessment. Then, the Income Tax authorities took proceedings under S.34 of the Indian Income Tax Act to reopen the assessment on Lala Madan Mohan Lal and make a re-assessment on him including the income which the joint family had succeeded in the appeal in getting eliminated from their assessment - the income tax authorities treating it as income which had escaped assessment within the meaning of S.34. Lala Madan Mohan Lal contended that it was not income which had escaped assessment within the meaning of S.34 and so his original assessment could not be reopened under that section. There was no unanimous decision in the case. The majority Judges, Addison, Ag. C. J., and Din Mohammed, J., took the view that the disputed income which was included in the joint family's assessment and which the joint family had got eliminated from their assessment in the appeal filed by them, was income which had escaped assessment so far as the assessment on Lala Madan Mohan Lal in his individual capacity was concerned and that his assessment could therefore be reopened and a re-assessment could be made under S.34 while the dissenting Judge, Dalip Singh, J., held that it was not income which had escaped assessment and that therefore no proceedings under S.34 could be taken in respect of it. Referring to Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal AIR 1934 PC 30 , Din Mohammed, J., said in his judgment: "It was contended before Their Lordships of the Privy Council that an assessment once taken if not completed within the year, could not be made unless it was done under S.34, Income Tax Act, as in those circumstances the income could be said to have escaped assessment ..................... The decision arrived at by Their Lordships of the Privy Council is that if once the assessment proceedings have started, it will not matter if they do not terminate in the year in which they have been started, and so long as those proceedings continue it will not be possible to say that the income has escaped assessment ........." Likewise, Addision Ag. C. J., said: "What was decided in it ( AIR 1934 PC 30 ) was that an assessment can be made under S.23(1) of the Act more than a year, in fact at any time, after the assessment year if in the meantime no final assessment has been made. But as the appellant before Their Lordships relied upon S.34 of the Income Tax Act they discussed those arguments and made some remarks on the section, those remarks are at page 290-291 (page 33 of the AIR) of the report and they must in my judgment be interpreted with reference to the argument and the point which had then to be decided. The argument was that, if a final assessment order was not made within the tax year the income tax authorities could not proceed to assess the income as it had escaped assessment except within the additional year allowed by S.34. The principal question to be decided was what was the meaning of the word 'assessment' and whether it could take place after the tax year. The answer was that the final assessment order could be made at any time". Dalip Singh, J.'s reasons for holding that the disputed income in that case was not income which had escaped assessment are contained in the following passage extracted from his judgment: "The word 'assessment', according to Their Lordships of the Privy Council, may be taken as equivalent to the 'course of assessment' and not equivalent to 'the order of assessment' ............ After all in what sense can the income in the present case be said to have escaped assessment except in the sense that it has not been assessed ? It figured in a return, and that return has been accepted as correct. It figures in the final order of assessment and was rejected in the assessment not because the attention of the Income Tax Officer was not directed to it but because he held that it had been and presumably, rightly assessed elsewhere. The only sense therefore in which it can be said to have escaped assessment is in the sense that it has not been assessed but this is the very meaning that their Lordships said was not the correct meaning of the ] words 'escaped assessment'. If this is so, then the case is concluded by the judgment of Their Lordships of the Privy Council and that being binding on this court the income cannot be said to have escaped assessment in this case.............. It is clear from the judgment of the Privy Council that the word 'escape' is not given its widest meaning. I am unable to see how in this case the income can be said to have 'escaped assessment' unless the word is given its widest meaning ..........The course of assessment involves both the calculation of the income and the charging of the income. In order to 'escape assessment' an income must avoid both calculation and charging. I am unable to see how in this case the income can be said to have 'escaped assessment' unless the word is given its widest meaning ..........The course of assessment involves both the calculation of the income and the charging of the income. In order to 'escape assessment' an income must avoid both calculation and charging. In the case where a deduction has been wrongly allowed, the income has possibly escaped being charged but has not escaped calculation. It is true that the arithmetical result is the same, but that is not the same thing as holding that the calculation never took place." 16. The view taken by the majority Judges, Addision, Ag. C. J., and Din Mohammed, J. that all the Privy Council had held in Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal AIR 1934 P.C. 30 was only that when assessment proceedings in respect of a particular assessee are still pending and no final order of assessment has been made on him, no income of his can be said to have escaped assessment, is also the view taken by the High Court of Rangoon, Allahabad, Bombay and Patna; and in that view Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal ( AIR 1934 P.C. 30 ) can have no application to the present case, for final assessment orders had been passed on Suppan Chettiar for the years 1951-52 and 1952-53 on 31-1-1955 and demand notices had been served and he had also paid the taxes in pursuance of these assessments long before the Commissioner started the revision proceedings in 1957. Dalip Singh, J., considered that the observations of the Privy Council in Rajendranath Mukherjee v. Commissioner of Income Tax, Bengal, regarding the meaning of the words 'assessment' and 'escaped' occurring in S.34 would support the contention that if a particular item of income was included in or disclosed by the assessee's return and the Income Tax Officer had passed the assessment order after considering the question whether the assessee should be taxed in respect of that income also or not, then the particular item of income would not be income which has escaped assessment even though it had escaped from taxation on account of a mistake or wrong decision of the Income Tax Officer. According to that learned Judge, the mere fact that an assessee had not been ordered to pay tax in respect i of a particular item of income is not sufficient for holding that that income has 'escaped assessment' within the meaning of that the expression as used in S.34, and if the omission to tax the assessee for that income was not due to his concealment of it or failure to submit a return but to a decision, even though wrong, taken by the Income Tax Officer in respect of it, the income cannot be p said to have 'escaped assessment', the word 'assessment' being taken by him to mean not only actual taxation but the whole course of assessment proceedings starting with the issue of the notice under S.23 and the submission of the return by the assessee. Although the disputed item of income in Lola Madan Mohan Lal v. Commissioner of Income Tax AIR 1935 Lah. 741 was first included in the assessment of the joint family before Lala Madan Mohan Lal's G assessment was reopened and the re-assessment was made on him including that item of income also, so far as the present case is concerned, it is significant that it was not because of the inclusion of that income in the first instance in the joint family's assessment but only because it was disclosed in Lala Madan Mohan Lal's return for the individual assessment on him and the Income Tax Officer had, while making the assessment on him, actually considered whether it should be included in his assessment or not and decided that it was not liable to be included in his assessment, that Dalip Singh, J., held that the disputed income was not income which had escaped assessment. Even on the view taken by Dalip Singh J., the disputed income in the present case, i. e., the income from the properties transferred to Natarajan and Mohan, would be income which had escaped assess-merit so far as Suppan Chettiar's assessment is concerned since it was not included in the return submitted by Suppan Chettiar in connection with his original assessment and the Income Tax Officer had not adverted to it in making the first assessment on Suppan Chettiar and decided whether he was liable to be taxed in respect of it or not. In the judgment of Dalip Singh, J., there is nothing to support the contention that income, which was not taken into consideration in the assessment of a particular person would not be income which has escaped assessment if it had previously been included in the assessment of another person. Dalip Singh, J., had no occasion to consider that contention since the disputed income in the case before him was disclosed in the return submitted by Lala Madan Mohan Lal in his individual capacity and in making the assessment on Lala Madan Mohan Lal the Income Tax Officer had also considered whether that income was liable to be taxed at his hands or not. It was these circumstances which made the learned Judge hold that it was not a case of escaped assessment ('assessment' meaning, according to him, the whole course of the assessment proceedings starting with the submission of the return and not merely the order of taxation). 17. Two other cases, Commissioner of Income Tax v. Hajee Ibrahim Kassam 37 Cochin Law Reports 409 and State of Madras v. Louis Dreyfus & Co. Ltd. 1955 (6) STC 318 were also referred to during the course of the arguments before us as throwing light on the meaning of the expression 'escaped assessment'. But it will be more convenient to deal with those cases while considering the cases as regards the Commissioner's revisional powers. 18. One of the earliest cases brought to our notice as regards the Commissioner's power under S.33 of the Indian Income Tax Act to revise and reopen an assessment which has become final and make a reassessment or to direct the Income Tax Officer to reopen, under S.34 and 35 of the Indian Act, such an assessment and make a reassessment, is Commissioner of Income Tax, Madras v. Sheik Abdul Kadir Maracayar AIR 1928 Mad. 257. In that case a portion of the income of the assessee escaped assessment for 1923-24, and the proceedings taken by the Income Tax Officer under" S.34 of the Indian Income Tax Act to reopen the assessment and re-assess him were set aside by the Assistant Commissioner on appeal. 257. In that case a portion of the income of the assessee escaped assessment for 1923-24, and the proceedings taken by the Income Tax Officer under" S.34 of the Indian Income Tax Act to reopen the assessment and re-assess him were set aside by the Assistant Commissioner on appeal. The Commissioner then started revision proceedings saying: "The Income Tax Officer started proceedings under S.34 and re-assessed the parties but the order of re-assessment was set aside by the Assistant Commissioner on appeal on the ground that there had been no proper service of notice but as the Income Tax Officer really commenced proceedings I shall, under S.33, take up those proceedings at the stage at which it was left and proceed to re-assess the patties by virtue of the powers vested in me of revision under S.33 of the Act"; and he re-assessed the assessee including the income which had escaped assessment. The case ultimately came up before the High Court on a reference under S.66 of the Indian Income Tax Act and was heard by a Full Bench consisting of Coutts-Trotter, C. J., and Beasly and Srinivasa lyengar, JJ. Srinivasa lyengar, J., delivering the judgment of the Full Bench, said: "....... .Section 33 also speaks of the Commissioner making such orders as he thinks fit only subject to the provisions of the Act. That expression clearly indicates that the power of the Commissioner to pass such orders as he thinks fit on revision is subject to the provisions of the Act. In other words, though the section says that the Commissioner may pass such orders as he thinks fit, the section indicates that the orders to be passed by him must be in accordance with the provisions of the Act and should not contravene such provisions. What then is the nature and scope of the power of the Commissioner to make any such re-assessment as he has done in this case ? The power to re-assess is given expressly only by S.34, and that section prescribes the condition precedent to any such: valid re-assessment, the condition precedent being service within one year of a proper notice on the assessee giving notice of the intention on the part of the Income Tax Officer to re-assess. The power to re-assess is given expressly only by S.34, and that section prescribes the condition precedent to any such: valid re-assessment, the condition precedent being service within one year of a proper notice on the assessee giving notice of the intention on the part of the Income Tax Officer to re-assess. The power of re-assessment is given in express terms only to the Income Tax Officer and not to any other officer, the Assistant Commissioner or the Commissioner. If it was intended by the legislature that the Commissioner or the Assistant Commissioner should also have similar powers, there is no reason why all of them should not have been mentioned as in the case of S.28. When it is a question of reopening an assessment already completed and when the statute prescribes the particular mode in which alone re-assessment can effected, it is clear that the condition should be rightly observed before the power is purported to be exercised. Though in the letter of reference it is admitted that the Commissioner of Income Tax would not generally initiate either assessment or re-assessment proceedings, still it is claimed that as a matter of law he has the right to do so. Having regard, therefore, to the terms of S.34, it is impossible to recognise the right of the Commissioner to initiate any such proceedings. It may well be that no such right was expressly given to the Commissioner, or even to the Assistant Commissioner because they can always by an official direction require the Income Tax Officer to take such proceedings; and further under S.33, the Commissioner has the power to revise any proceedings by the Income Tax Officer. Thus from the scheme of the Act it would be clear that it is the Income Tax Officer alone that can initiate re-assessment proceedings. But if the Income Tax Officer should make a mistake and after having started re-assessment proceedings fail to re-assess the parties, the proceedings of the Income Tax Officer would undoubtedly be open to revision by the Commissioner under S.33, and he may thereupon pass any order as he thinks fit. But if the Income Tax Officer should make a mistake and after having started re-assessment proceedings fail to re-assess the parties, the proceedings of the Income Tax Officer would undoubtedly be open to revision by the Commissioner under S.33, and he may thereupon pass any order as he thinks fit. But, it must be borne in mind that the condition precedent to this exercise of the power of re-assessment is the proper service of notice indicated in S.34, We may even go further and indicate that in this very case although the Assistant Commissioner set aside the order of re-assessment made by the Income Tax Officer on the view that the Assistant Commissioner took of the validity of the service of the notice, it was still open to the Commissioner under S.33 to revise that order of the Assistant Commissioner, set it aside and restore the order of the Income Tax Officer. But this was not what was done or even purported to be done. The Commissioner for purposes of his order of re-' assessment assumed that the order of the Assistant Commissioner regarding the validity of the service of the first notice was right and proper, and that finding has not been set aside. The question then resolves itself into whether in the absence of the service of notice within the year as indicated in S.34, it is open to the Commissioner to serve another notice after the lapse of the year and seek to re-assess the parties. It seems to me, having regard to the scheme of the Act, that the condition precedent for re-assessment being the service of the notice as indicated in S.34, and such service of notice not having been effected according to the findings, the Commissioner has no right to initiate further or fresh proceedings for re-assessment. The power of revision given in S.33 is a power merely of revision and such powers cannot be regarded as being larger than the powers of a court of appeal. The power of revision given in S.33 is a power merely of revision and such powers cannot be regarded as being larger than the powers of a court of appeal. It, therefore, allows that so long as the Commissioner did not in revision seek to set aside the finding of the order of the Assistant Commissioner with reference to the service of notice, it follows we must proceed on the footing that there had been no valid service of notice within the time under S.34 of the Act and that therefore the condition precedent for re-assessment has not been satisfied or complied with." Thus, according to the Full Bench decision, acting under S.33 of the Income Tax Act, 1922, the Commissioner cannot himself reopen an assessment and make a re-assessment including any income which had escaped assessment and can only give a direction to reopen the assessment and make a re-assessment under S.34 to the Income Tax Officer, who is the only authority competent to do it, and the service of the notice under S.34 is essential even for the Income Tax Officer to reopen the assessment and make a re-assessment. 19. Since S.33 of the Indian Act prescribes no time limit for the exercise of the Commissioner's revisional powers and it is only in S.34 of that Act that a time limit is prescribed and since S.33 expressly provides that the Commissioner may pass such orders in revision as he thinks fit (in regard to these matters the provisions in the Travancore Cochin Agricultural Income Tax Act are also similar, except, as already stated, that the time limit is three years in the Travancore Cochin Act and only one year in the Indian Act), it has been urged in some cases, as well as in the present case before us, that it is open to the Commissioner to give a direction to the Income Tax Officer to reopen an assessment and make a re-assessment under S.34 (Indian Act) even though the time limit prescribed by S.34 for the service of notice has expired and that, in such a case, the Income Tax Officer will be unfettered by the provision in S.34 regarding the time limit for service of the notice as he is acting under the lawful direction given by the Commissioner in exercise of the powers vested in the latter under S.33. This contention has been considered by the Privy Council in Khumchand v. Ramdas 1938 (6) I.T.R. 414 and has been dealt with as follows by Lord Romer: "The Commissioner's power under S.33, can only be exercised subject to the provisions of the Act of which the provisions in S.34 and 35 are in this respect of the greatest importance. Those sections are or were at the material times as follows: (S.34 and 35 of the Indian Income Tax Act as they stood before the amendments of 1939 are then extracted) In view of these express provisions of the Act, it is in their Lordship's opinion quite impossible to suppose that the Income Tax officer may in every kind of circumstances and after any, lapse of time make fresh assessments or issue fresh notices of demand; or that the Commissioner can direct him so to do. In Their Lordships' opinion the provisions of the two sections are exhaustive, and prescribe the only circumstances in which and the only time in which such fresh assessments can be made and fresh notices of demand can be issued." (underlining ours). 20. In Commissioner of Income Tax, Burma v. Ved Nath Singh 1940 8 ITR 222, referred to in paragraph 8 above, it was contended on behalf of the Income Tax Department that the Commissioner, acting under S.33, was by himself competent to reopen a final assessment and make a fresh assessment without directing the Income Tax Officer to proceed under S.34, and that in such (a case the Commissioner would not be fettered by the time limit for the service of the notice prescribed by S.34. It was urged in that case that in Khumchand v. Ramdas 1938 6 ITR 414 the Commissioner had not made the fresh assessment himself and had only directed the Income Tax Officer to make a fresh assessment under S.34, and so, the observations of the Privy Council therein that the provisions of S.34 and 35 are exhaustive and prescribe the only circumstances in which such fresh assessments can be made were only obiter. The High Court repelled this contention and accepted without reservation the dictum of the Privy Council in Khumchand v. Ramdas 1938 (6) ITR 414 extracted in paragraph 9 above. The High Court repelled this contention and accepted without reservation the dictum of the Privy Council in Khumchand v. Ramdas 1938 (6) ITR 414 extracted in paragraph 9 above. The concluding paragraph of the statement of case by the Commissioner in Commissioner of Income Tax, Burma v. Ved Nath Singh 1940, 8 ITR 222; reads as follows: "In conclusion, I would refer to the case of Khumchand v. Ramdas (decided by the Privy Council; Judgment dated April 7, 1938 : 6 ITR 414) where the provisions of S.34 and 35 were considered in relation to the exercise of the powers by the Commissioner under S.33, but only to point out that neither the actual decision of the Privy Council nor any obiter dictum in that judgment applies to this case. There was no question in this case of the Income Tax Officer's taking any action in pursuance of, or consequentially on, the Commissioner's order. The Commissioner's order was a substantive and conclusive order in revision under S.33 and proceedings were taken by him within the limitation prescribed by S.34. In the other case it was a question of the consequences which followed the cancellation of the registration by the Commissioner." Dealing with this argument Robert, C. J., said at page 235 of the report in (1940) 8 I. T. R. 222: "The Commissioner cannot, by purporting to act under S.33 of the Act, take action under S.34, although he can, if the time within which such action must be taken has not expired, direct the Income Tax officer to take such action. It is plain from the provisions of S.34 that under this section there must be a fresh notice under S.22(2), requiring the assessee to make a new return of his income from all sources and following thereon a fresh assessment under S.23. From such fresh assessment there would be a right of appeal under S.30 to the Assistant Commissioner, and under appropriate conditions a right of appeal under S.32 or application in revision under S.33 to the Commissioner. The Commissioner cannot deprive the assessee of these rights by acting in reality under S.34 in the guise of acting under S.33." 21. In Commissioner of Income Tax, Bombay v. Edulji Dinshaw 1943 (11) ITR 340 also, the same question came up for consideration. The Commissioner cannot deprive the assessee of these rights by acting in reality under S.34 in the guise of acting under S.33." 21. In Commissioner of Income Tax, Bombay v. Edulji Dinshaw 1943 (11) ITR 340 also, the same question came up for consideration. Beaumont, C. J., said therein: "In my opinion, it is clear that the Commissioner of Income Tax cannot by a revision order under S.33 enhance the tax on the ground that income has escaped assessment, unless he proceeds under S.34. He can, no doubt, under S.33 direct the Income Tax Officer to take action under S.34; but, in my opinion, if a reassessment has to be made on the ground that income has escaped assessment, that can only be done by the procedure laid down under S.34. The argument of the Commissioner seems to me to produce most extraordinary results. His contention is that under S.33 he can call for the papers before the Income Tax Officer, at any rate within the time limited by S.34, and he can then of his own motion enhance the assessment on the ground that income has escaped assessment, or been assessed as too low a rate. .............................. At the time when the Commissioner took action under S.33 the assessment was that which had been arrived at as a result of the Appellate Assistant Commissioner's order, and in my judgment, the Commissioner had no power to increase that amount on the ground that income had escaped assessment, or been assessed at too low a figure, except by directing the Income Tax Officer to proceed under S.34. That view is in accordance with the views expressed by two High Courts, the Madras High Court in Sheik Abdul Kadir v. Commissioner of Income Tax and by the Rangoon High Court in Commissioner of Income Tax, Burma v. Ved Nath Singh. ........... S.33 only enables the Commissioner to make an order subject to the provisions of the Act, and I think the decisions of the Privy Council, to which we have been referred, in Commissioner of Income Tax, Bombay v. Khemchand, supports the view that those words prevent the Commissioner from making an order under S.33, which would fall under S.34 or S.35". (underlining ours). (underlining ours). Kania, J., the other member of the Bench which decided Commissioner of Income Tax, Bombay v. Edulji Dinshaw 1943 (11) ITR 340 has said at pages 350 and 351 of the report: "On behalf of the Commissioner it was urged that S.33 of the Act (in force at the time of the assessment) gave the Commissioner the widest power to make such orders as he thought fit. The section is expressly worded so as to make it subject to the provisions of the Act. That expression was construed by the Privy Council in Commissioner of Income Tax, Bombay v. Khumchand as covering S.34 and 35. When it was argued that the Commissioner could revise an order at any time he thought fit Lord Romer, in the course of his judgment, observed: 'Their Lordships would in any case, hesitate long before according to a contention that would lead to so extravagant results. In their opinion, however, the contention cannot prevail. The Commissioner's power under S.33 can only be exercised subject to the provisions of the Act of which the provisions in S.34 and 35 are in this respect of the greatest importance'. Therefore the contention that the Commissioner had the widest powers as contended for is set at rest by those observations. ...........The construction of S.33 when read with S.34 and 35 was considered by the Madras High Court in the two cases referred and to by the learned Chief Justice in his judgment and both the courts came to the conclusion that it was not right for the Commissioner while purporting to act under S.33 to override the provisions of S.34. It seems to me clear that if the Commissioner thought that the view of the Appellate Assistant Commissioner was erroneous and a different ''view should be taken, it was his duty to give directions to proceed under S.34 and it was not within his power himself to act as if under S.34 and re-assess on the ground that the rate charged was lower". The question arose again for decision in Bombay High Court in Commissioner of Income Tax, Bombay v. Mangaldas Motilal 1944 (12) I.T.R. 89 before Beaumont, C. J., and Chagla, J., and has been dealt with in very clear words by Beaumont, C. J., in the following passage in his judgment in that case : "The Privy Council held in Commissioner of Income Tax, Bombay & Aden v. Khemchand Ramdas that the powers of the Commissioner under S.33 "are restricted by reason of the words "subject to the provisions of this Act" by the terms of S.34 and 35 and if the Commissioner desires to enhance the assessment under S.34, he must proceed within the time limited by that Section. In Commissioner of Income Tax v. Edulji Dinshaw this court held that the Commissioner could not, under S.33, himself enhance the assessment, although we pointed out that he might, under his revisional powers, direct the Income Tax Officer to take proceedings under S.34 for the purpose of enhancing the assessment. In this case, no doubt, the Commissioner has not .purported himself to enhance the assessment. He could not have directed the Income Tax Officer to take proceedings under S.34, because the proceedings would have been out of time. What he has done is merely to direct the Income Tax Officer to proceed from the point at which notice was given under the old assessment and to make a new assessment, and, I agree with the Commissioner's argument that there is nothing in the terms of S.33 to prevent such an order being made. The Commissioner is doing something which the Assistant Commissioner might do in appeal within the time limited under S.31. But to my mind, one cannot ignore the effect of the Commissioner's order. As I have already pointed out, it is obvious that the order is intended to result in the assessment as passed by the Assistant Commissioner being enhanced. If that is done, then the Commissioner has done exactly what the Privy Council, and this Court, in the cases I have referred to, decided that he could not do, and he has in fact caused the assessment to be enhanced without regard, and contrary to the provisions of S.34. In my opinion, he cannot do that. We must assume that the result of ' the new assessment would be to enhance the figure. In my opinion, he cannot do that. We must assume that the result of ' the new assessment would be to enhance the figure. If that were not the result intended, obviously the assessee would not object to it. But assuming that to be the result, in my judgment, it is not competent to the Commissioner under S.33 to bring about that result". Following Commissioner of Income Tax v. Khumchand Ramdas (6 I. T. R. 414) Chagla, J., also held in that case that "Once the assessment becomes final the only power to reopen it or to order re-assessment is that contained in S.34 and 35 of the Act and the conditions laid under those sections must be strictly complied with and the time limit also prescribed in those sections must be observed." 22. Commissioner of Income Tax v. Hajee Ibrahim Kassam (37 Cochin Law Reports 409), referred to in paragraph 17 above, was a case arising under the Cochin Income Tax Act, 6 of 1117 M. E., and was decided by a Full Bench consisting of Krishnaswamy lyengar, C. J., Krishna Menon, J., and Koshi, J. (the present Chief Justice of this Court). S.43 of the Cochin Income Tax Act of 1117 M. E. which provides for the Commissioner's powers of revision reads as follows: "43 (1) The Commissioner may of his own motion call for the record of any proceeding under this Act which has been taken by any authority subordinate to him or by himself when exercising the powers of the Deputy Commissioner under sub-s.(2) of S.8. (2) On receipt of the record the Commissioner may make such enquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such orders thereon as he thinks, fit. Provided that he shall not pass any order prejudicial to an assessee without hearing him or giving him a reasonable opportunity of being heard : Provided further that an order by the Commissioner declining to interfere shall be deemed not to be an order prejudicial to the assessee." Except for the last proviso in the Cochin Act and for the substitution of the words 'Deputy Commissioner' in that Act for the words 'Assistant Commissioner' in the first clause of the section in the Indian Act, the provisions in the two Acts are exactly similar. But, so far as the next section, namely the section providing for the re-assessment of escaped income, etc., is concerned, the Cochin Act of 1117 M. E. adopts the language of S.34 of the Indian Income Tax Act as amended by the Amendment Act of 1939 and not the language of the section as it stood before the amendment. S.34 of the Indian Act as it stood before the amendment of 1939 and S.35 of the Travancore Cochin Agricultural Income Tax Act are similar, and the provisions of those two sections have been extracted in paragraphs 3 and 6 above. S.44 of the Cochin Act reads: "44(1) If in consequence of definite information which has come into his possession the Income Tax Officer discovers that income, profits or gains chargeable to income tax have escaped assessment in any year, or have been under-assessed or have been assessed at too low a rate, or have been the subject of excessive relief under this Act the Income Tax Officer may, in any case in which he has reason to believe that the assessee has concealed the particulars of his income or deliberately furnished inaccurate particulars thereof, at any time within eight years, and in any other case at any time within four years of the end of that year, serve on the person liable to pay tax on such income, profits or gains, or, in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub-s.(2) of S.27, and may proceed to assess or reassess such income, profits or gains. And the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice under that sub-section : Provided that the tax shall be 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 : Provided further that when the income, profits or gains concerned are income, profits or gains liable to assessment for a year ending prior to the commencement of this Act, or where the assessment made or to be made is an assessment made or to be made on a person deemed to be the agent of a non resident person under S.53, this sub-section have effect as if for the periods of eight years a period of one year were substituted. (2) No order of assessment under S.28 or of assessment or reassessment under sub-s.(1) of this section shall be made after the expiry, in any case to which clause (c) of sub-s.(1) of S.38 applies, of eight years and in any other case of four years, from the end of the year in which the income, profits or gains were first assessable : Provided that nothing contained in this sub-section shall apply to a reassessment made in pursuance of an order under S.41, S.42, S.43 or S.109." The facts which gave rise to the reference to the High Court in Commissioner of Income Tax v. Hajee Ibrahim Kassam (37 Cochin Law Reports 409) were as follows: One Hajee Ibrahim Kassam who was a rice merchant carrying on business in Cochin had branches at Akyab and Rangoon in Burma and was assessed by the Deputy Commissioner of Income Tax for the year 1117 on an income of Rs. 2,34224 which included a sum of Rs. 37,731 representing profits of the Akyab and Rangoon branches. In appeal the Commissioner of Income Tax reduced the income from the Akyab and Rangoon branches from Rs. 37,731 to Rs. 30,000 and included one half of that income in the profits assessable to tax in Cochin. 2,34224 which included a sum of Rs. 37,731 representing profits of the Akyab and Rangoon branches. In appeal the Commissioner of Income Tax reduced the income from the Akyab and Rangoon branches from Rs. 37,731 to Rs. 30,000 and included one half of that income in the profits assessable to tax in Cochin. After the assessment proceedings for 1117 were completed, in Kar-katakam 1118 the Deputy Commissioner wrote to the Commissioner of Income Tax that from the copies of the British Indian assessment orders filed by the assessee it was seen that his income was very much higher than even the amount fixed in the Deputy Commissioner's order of assessment and requested the Commissioner to revise the assessment proceedings of 1117 and enhance the assessment. In pursuance of this letter, on the 29th Makaram 1110 the Commissioner passed an order in exercise of his revisional powers under S.43 enhancing the assessable portion of the profits from the Burma branches from Rs. 15000 to Rs. 80,000. The question which was referred to the High Court was whether under S.43 of the Cochin Income Tax Act, 6 of 1117, the Commissioner can, in the light of fresh evidence which comes to his notice, enhance an assessment made under S.41 by the Appellate Authority (the section in the Cochin Act providing for appeals from original assessment orders). 23. After an exhaustive consideration of the British Indian authorities, Krishnaswamy lyengar, C. J., summed up the position of law, at page 420 of the report, as follows: "The principle which emerges from the case law examined above is that the rather indefinite language used in S.43(2) according to which the Commissioner can pass such orders as he thinks fit, should be understood as being limited by three conditions, viz. (1) that he cannot himself pass an order which according to the Act has to be passed by another officer though he can give directions in that behalf consistently with the provisions of the Act (2) that in making his order under the section he cannot himself override, nor can he direct or allow subordinate officer to override any of those provisions and (3) that subject as aforesaid, he can exercise his powers of revision by calling for the record of any proceedings which has been taken by any authority subordinate to himself and correcting errors if any committed by him, whether the result of such action be an enhancement or a reduction. The scope of the enquiry which he is empowered by S.43 to make is to be determined by the nature of the order he can pass." The learned Chief Justice also took the view that the difference between the amount of Rs. 15,000 (which was the amount fixed in the appellate order of the Commissioner as the taxable portion of the Burma branches) and the amount of Rs. 80,000 (which was the amount fixed under the same head in the reassessment order) was income which had escaped assessment at the time of the original assessment and that the Deputy Commissioner alone was, therefore, competent to make the re-assessment under S.44 and held that the action taken by the Commissioner under S.43 enhancing the assessment was unsustainable. 24. Krishna Menon, J., dissented from the view that the amount newly brought under taxation by the order passed by the Commissioner under S.44 was escaped income. The view that he took was practically the same as the view expressed by Dalip Singh, J., in his judgment in Lala Madan Mohan Lal v. Commissioner of Income Tax (AIR 1935 Lah. 742). According to Krishna Menon, J., "the question whether income which has not been assessed comes within the definition of 'escaped income' or not will be a question of fact or, to be more precise, a mixed question of law and fact depending upon the particular circumstances of each case." and he said : "When a particular source of income or head of income has not been assessed by the Income Tax Officer originally there is certainly a case of escaped income, under S.44. For example, in this case, the assessee had branches both at Akyab and Rangoon and these sources were revealed and a return was presented with respect to the income derived from those two sources. Suppose later on it is found that the assessee had another branch at Singapore which was not revealed to the Income Tax Officer and if there is income or profit from that branch then it will definitely be a case coming under S.44. Again, once a source of income is revealed and a return submitted with regard to that source and the assessing officer assessed the income thereof, there is no scope for escaped income as far as that source is concerned. That is what happened in this case. The assessee had two branches in Burma, viz. at Akyab and Rangoon. Their existence was revealed and the assessee submitted a return with respect to those branches. The assessing officer assessed the income from those sources at about Rs. 37,000. It may be that in reality this amount represented an under-assessment or an over assessment. That is the matter to be corrected by the higher authorities, either in appeal or in revision. But there cannot be a case of escaped income which has to be proceeded against under S.44." Taking this view Krishna Menon, J., held that as the case did not fall under S.44 the Commissioner was competent to revise the original assessment and enhance the same in proceedings under S.43. But he too was clear that "If a reassessment is called for as contemplated by S.44, then the only way to achieve it is to follow the exact procedure prescribed by S.44, the commissioner functioning under S.43 cannot do an act which some other authority is empowered to do under S.44." It was only because he took the view that the case was not one coming under S.44 that he held that the Commissioner was competent to exercise his revisional powers. 25. While agreeing with his two colleagues that in cases to which S.44 would be attracted the Commissioner could not, in exercise of his revisional powers under S.43, reopen an assessment which had become final and make a reassessment including the escaped income, Koshi, J, agreed with the learned Chief Justice in holding that, on the facts of that case, the difference between the amounts of Rs. 15,000 and Rs. 15,000 and Rs. 80,000 was escaped income and that the Commissioner's action under S.43 was therefore unsustainable. But he also expressed the opinion that there might arise cases to which S.44 would not be attracted and which might require the final assessment to be reopened and re-assessment to be made and that in such cases the Commissioner would be competent to reopen the assessment in exercise of the revisional powers under S.44 and make the re-assessment. But the S.44 which Koshi, J, had in view when he expressed the above opinion was not a section similar to S.34 of the Indian Act as it stood before the amendment of 1939 but one similar to S.34 of the Indian Act as it stood after the amendments of 1939. In the view taken by Krishna Menon, J., as to the meaning of the term 'escaped income' the difference between S.34 as it stood before the amendments of 1939 and as it stood after those amendments was immaterial. In defining the Commissioner's revisional powers under S.43 Koshi, J., was not influenced by the meaning given by Krishna Menon, J., to the expression 'escaped assessment' but by the changes brought about by the amendments of 1939 to the earlier portion of S.34 of the Indian Income Tax Act and the adoption, in the Cochin Income Tax Act, of the language of the amended section instead of the language of S.34 as it stood before the amendments. His Lordship says at pages 437 and 438 of the report: "....... S.44 as amended, while widening the field of assessment or re-assessment, as the case may be, and enlarging the period during which proceedings can be initiated, has restricted the grounds for interference to a large extent. The income tax Officer can now act under the section only if he makes a discovery with regard to matters specified in the section in consequence of definite information that comes to his possession. While Act VIII of 1108 entitled him to take action "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". It is possible that revision proceedings validly initiated, may bring to the notice of the Commissioner 'fresh evidence' but at the same time S.44 may not be attracted. It is possible that revision proceedings validly initiated, may bring to the notice of the Commissioner 'fresh evidence' but at the same time S.44 may not be attracted. Two recent decisions, one of the Bombay High Court and another of the Madras High Court have pointed out the difficulty in laying down a rule to cover all cases in which the section (S.34 of the Indian Income Tax Act) can be invoked or to lay down all the implications of the expression 'definite information' in the section. The decisions I have in mind are those reported as the Commissioner of Income Tax, Bombay v. Sir Mohamed Yusuf Ismail 12 ITR 8 and V.M. Raghavalu Naidu and sons v. Commissioner of Income Tax, Madras 13 ITR 195. Herein Cochin in the Income Tax Act of 1117 we retain the old S.35 (corresponding to S.33 of the Indian Income Tax Act, 1922) renumbering it as S.43 and adopt in place of our old S.36 (corresponding to S.34 of the Indian Income Tax Act, 1922) S.34 of the Indian Income Tax Act as amended in 1939 This amended section is renumbered as 44. I hesitate to think that the effect of the new combination would be the same as that of the old and the relevant British Indian authorities are cases dealing with the conjoined effect of the two sections as they stood in the Indian Income Tax Act, 1922. In these circumstances, the answer I would give is that the Commissioner cannot under S.43 of the Cochin Income Tax Act VI of 1117 enhance an assessment made under S.41 by the appellate authority in the light of fresh evidence which come to his notice, if the circumstances are such that S.44 would be attracted to that case. But there would exist a type of cases that can, in the light of fresh evidence be dealt with under S.43 unfettered by the provisions of S.44. But there would exist a type of cases that can, in the light of fresh evidence be dealt with under S.43 unfettered by the provisions of S.44. Otherwise, assessable income not charged to income tax will escape assessment when it does not attract the application of S.44 or S.45, even though the Income Tax authorities may be aware of it within the statutory period and I cannot reconcile myself to the thought that the wide terms in which S.43 is couched authorising the Commissioner to hold an enquiry and pass such orders as he thinks fit would countenance any assessable income escaped being charged to income tax. This construction takes due note of the words 'subject to the provisions of the Act' occurring in the section". 26. Thus, of the two questions with which we are primarily concerned in this case, one, namely, when the assessment already made on one person is sought to be reopened or revised so as to include in the revised assessment on him an item of income which was not included in his original assessment and which was included in the assessment of another person, whether such income would be, so far as he is concerned, income which has escaped assessment within the meaning of S.34 of the Indian Income Tax Act (S.35 of the Travancore Cochin Agricultural Income Tax Act), did not arise for consideration in 37 Cochin Law Reports 409 and was not considered by any of the Judges who took part in that case; and there is nothing in the judgments of any of the learned Judges in that case which would support the learned Government Pleader's contention that, on account of the inclusion of the income in some other assessment, it cannot, as regards the particular assessment sought to be reopend or revised, be viewed as income which has escaped assessment. Even according to the dissenting Judge the question, whether income has escaped assessment or not is a mixed question of law and fact depending upon the particular circumstances of each case. In that view, so far as the present case is concerned, the question whether the particular item of income has escaped assessment or not has to be decided with reference to the particular circumstances of this case, namely, whether it was included in the particular assessment sought to be reopened and revised. In that view, so far as the present case is concerned, the question whether the particular item of income has escaped assessment or not has to be decided with reference to the particular circumstances of this case, namely, whether it was included in the particular assessment sought to be reopened and revised. On the other question with which we are concerned in this case, all the three Judges in that case were of the unanimous opinion that in the case of escaped income the Commissioner cannot himself enhance the assessment under S.33 of the Indian Act (S.43 of the Cochin Act) and that S.43 (Cochin Act) cannot be invoked to cases where S.44 or S.45 (Cochin Act) would be attracted. The other questions dealt with in the judgments of Krishna Menon and Koshi, JJ., do not arise for consideration in this case although, it may be mentioned in passing that the considerations which weighed with Koshi, J., in holding that there might arise cases of escaped income to which S.44 of the Cochin Act (S.34 of the Indian Act) might not apply and the Commissioner has the power to enhance the assessment in such cases by the exercise of his revisional powers under S.43 of the Cochin Act, cannot apply to cases arising before the amendments of 1939, because His Lordship's considerations are expressly based on the language of the amendments in the Indian Act introduced by the Amendment Act of 1939 and the adoption of the language of the amended section of the Indian Act in the Cochin Act and also in view expressed by His Lordship (at page 436 of the report) that even in cases of underassessment of a particular item of income which had been disclosed in the assessee's return and considered by the Income Tax Officer at the time of the assessment the portion of the income under that head not assessed by the original order would be income which has escaped assessment. 27. State of Madras v. Louis Drayfus & Co., Ltd. (1955 6 S. T. C. 318) was also decided by a Full Bench. 27. State of Madras v. Louis Drayfus & Co., Ltd. (1955 6 S. T. C. 318) was also decided by a Full Bench. Two different cases, one arising from the decision of a Single Judge of the Madras High Court in C. S. No. 446 of 1947 and the other arising from the decision of the City Civil Court in C. C. A. No. 137 of 1951 were disposed of together by the judgment in that case. Both those cases arose under the Madras General Sales Tax Rules and the assessments in both of them also related to the year 1944-45. In both, the total turnover of the assessee fixed by the order of the original authority, the Deputy Commercial Tax Officer, was enhanced by the revisional authority, the Commercial Tax Officer, and the assessment increased. In one case the Deputy Commercial Tax Officer passed the order assessment on 27th March 1946, and the Commercial Tax Officer issued the notice to show cause why the assessment should not be revised on the 28th March 1947 and enhanced the assessment on the 31st March 1947 including in the turnover a sum of over Rs. 30 lakhs in addition to the turnover fixed by the Deputy Commercial Tax Officer. In the other the Deputy Commercial Tax Officer made the assessment order on the 26th March 1946, the assessee's appeal from the assessment order was dismissed on 25th March 1947, and the Commercial Tax Officer issued the notice to show cause why the assessment should not be revised on 5th March 1948 and enhanced the assessment on the 1st December 1948 including in the assessment a sum of over Rs. 7 lakhs in addition to the turnover fixed by the Deputy Commercial Tax Officer. Rules 14 and 17 of the Madras General Sales Tax Rules relate to revision and taxation of turnover which has escaped assessment, rules which may be taken as corresponding to S.33 and 34 of the Indian Income Tax Act. Both those rules underwent slight changes between the dates of issue of the notices for revision in the two cases, namely, between 28th March 1947 and 5th March 1948. Both those rules underwent slight changes between the dates of issue of the notices for revision in the two cases, namely, between 28th March 1947 and 5th March 1948. Relevant portions of rules 14 and 17 as they stood on the 27th March 1946 read as follows: "14(1) Every order passed on appeal under rule 13 shall, subject to the powers of revision conferred by S.12 and by sub-rule (2) be final. (2) The Commercial Tax Officer may, in his discretion, at anytime, either suo moto or on application, call for and examine the record of any order passed or any proceedings recorded under the Act by an Assistant or Deputy Commercial Tax Officer working under him, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceedings and may pass such order in reference thereto as he thinks fit." x x x x x "17(1) If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or it the licence fee has escaped levy in any year, the assessing authority or licensing authority, as the case may be, may, at any time within the year or the year next succeeding that to which the tax or licence fee relates, assess the tax payable on the turnover which has escaped assessment or levy the licence fee, after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary. (2) If for any reason any tax or licence fee has been assessed at too low a rate in any year the assessing authority or the licensing authority, as the case may be, may, at any time within the year or the year next succeeding that to which the tax or license fee relates revise the assessment or the licence fee after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary." They were amended on the 7th February 1948 ; and as they stood on the 5th March 1948 they read as follows : "14. The following authorities may exercise the powers of the nature referred to in S.12(1):-- (1) The Deputy Commissioner of Commercial Taxes, and (ii) The Commercial Tax Officer; Provided that the Deputy Commissioner of Commercial Taxes shall not revise an appellate order of a Commercial Tax Officer acting under S.11 in respect of cases involving a turnover exceeding Rs. 20,000. 14A. Where the tax as determined by the initial assessing authority appears to the appellate or revising authority to be less than the correct amount of the tax payable by the dealer, the appellate or revising authority shall, before passing orders, determine the correct amount of tax payable by the dealer after issuing a notice to the dealer and after making such enquiry as such appellate or revisional authority considers necessary". x x x x x "17(1) If for any reason the whole or any part of the turnover of business of a dealer or licensee has escaped assessment to the tax in any year or if the licencee fee has escaped levy in any year, the assessing authority or licensing authority, as the case may be, may at any time within the year or the two years next succeeding that to which the tax or licence fee relates, assess the tax payable on the turnover which has escaped assessment or levy the licence fee, after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary. (2) If for any reason any tax or licence fee has been assessed at too low a rate in any year, the assessing authority or the licensing authority, as the case may be, may, at any time within the year or the two years next succeeding that to which the tax or licence fee relates, revise the assessment or the licence fee after issuing a notice to the dealer or licensee and after making such enquiry as he considers necessary." x x x x x One of the contentions raised on behalf of the assessee in both cases was that the amounts newly included in the turnover by the Commercial Tax Officer in revision was turnover which had escaped assessment within the meaning of rule 17(1) and so after the original assessments they could be brought under taxation only according to rule 17 and the Commercial Tax Officer was not competent to enhance the assessment including those amounts also in the turnover by way of revision under rule 14. On behalf of the State it was conceded that, if the amounts which had escaped taxation in the first instance and which were subsequently brought under taxation by the Commercial Tax Officer's revisional orders, namely, over Rs. 30 lakhs in one case and over Rs. 7 lakhs in the other, were turnover which had escaped assessment, the Commercial Tax Officer's powers of revision under rule 14 could not be exercised in respect of them and action could have been taken only under rule 17(1) for bringing those amounts under taxation. But the State contended that those two amounts were not escaped turnover, and this contention was accepted by the Full Bench. In consequence, it was held in that case that the Commercial Tax Officer, was competent to revise the assessments and to enhance the tax, bringing under taxation the two amounts which were not taxed by the original order. At page 328 of the report it is said : "The other question that has to be considered is thus formulated in the order or reference: Whether the powers of revision thereunder (under rule 14(2)) can be exercised in cases to which rule 17 relating to escaped assessment is applicable? At page 328 of the report it is said : "The other question that has to be considered is thus formulated in the order or reference: Whether the powers of revision thereunder (under rule 14(2)) can be exercised in cases to which rule 17 relating to escaped assessment is applicable? In the from in which it has been stated above it is capable of only one answer, namely, that the two rules are mutually exclusive and that in cases which fall within rule 17(1) and where the jurisdiction to reopen the assessment is vested in the assessing authority, the Commercial Tax Officer would not have the power to pass such an order under rule 14(2). And this was in fact conceded by the learned Advocate General who appeared for the State ........... The argument addressed to us by the learned Advocate General was that the two rules 14(2) and 17(1) have to be read together to define the precise content of each and so read rule 17(1) would be applicable only to cases where the turnover of a dealer has been omitted to be taken into account by an assessing authority either because there was a deliberate concealment of such transactions by the assessee or because of any inadvertent omission on his part or on the part of the assessing officer. Only such cases could with Propriety be termed cases where the turnover has escaped assessment. On the other hand, in cases where the entire turnover of an assessee is before the assessing authority and is considered by it and such authority by error or fact or law treats the turnover or any part therefore as not assessable or grants a deduction or exemption to which the assessee is not entitled under the Act, the case is not one of escaped turnover but of an improper or illegal assessment order which is revisable under rule 14(2). The contention however raised on behalf of the assessee respondents was that rule 17 should be understood as applicable not merely to cases of escaped turnover as set out above but also to every case where by reason of some error or omission on the part of the assessing authority the assessee has been directed to pay a lesser amount of tax than was properly taxable by him." It would appear from this passage that the contention of the Advocate General in that case was similar to the contentions which found favour with Dalip Singh, J., in AIR 1935 Lah. 742 and Krishna Menon, J., in 37 Cochin Law Reports 409, and that the assessees' contention was that which found favour with the majority Judges in AIR 1934 Lah. 742 and also accepted in 12 ITR 89, 6 ITR 414 and 8 ITR 222. 28. In support of their contention the assessees in State of Madras v. Louis Dreyfus & Co. Ltd., (1955, 6 STC 318) relied upon the analogy of S.33 and 34 of the Indian Income Tax Act and the cases under those sections. Repelling the assessees' contention the Full Bench held that rule 17(1) would apply and turnover could be said to have escaped assessment only in case in which that turnover was not revealed in the assessees' return or the records of the assessment and the assessing authority had not at the time of the assessment considered the question whether the assessees were liable to be taxed on that turnover or not, that in other cases (that is to say, in cases where the turnover was disclosed either by the return or in the records of assessment or where the assessing authority had considered whether the assessee could be taxed on the particular turnover or not and come to a wrong decision either on account of a mistake or omission) turnover could not be said to have escaped assessment, and that such cases would be cases of improper or illegal assessments and so the Commercial Tax Officer could in revision enhance the assessment including the turnover which had not been assessed. Regarding the analogy of S.34 of the Indian Income Tax Act relied upon by the assessee this is what the Full Bench has said at pages 328 and 329 of the report in 6 S. T. C. 318 : "........ Regarding the analogy of S.34 of the Indian Income Tax Act relied upon by the assessee this is what the Full Bench has said at pages 328 and 329 of the report in 6 S. T. C. 318 : "........ In this connection the analogy of S.34 of the Income Tax Act and certain decisions interpreting the scope of that section were strenuously pressed upon us. Reliance was particularly placed on the decision of this Court reported in Commissioner of Income Tax, Madras v. Rajah of Parlakimedi, Commissioner of Income Tax, Madras v. Messrs. Sheik Abdul Kadir Maracayar & Co. and of the Privy Council in Commissioner of Income tax, Bombay v. Khemchand Ramadas. We do not propose to discuss the facts of these cases or refer to the observations in them as regards the proper construction of S.34 of the Income Tax Act because in our opinion there is no real analogy between rule 17(1) of the Madras General Sales Tax Rules and the provisions contained in S.34 of the Income Tax Act. The scheme of the two enactments is wholly different. The language employed in S.34 of the Income Tax Act which has undergone serious changes from time to time is not identical with that in rules 17 of the Madras General Sales Tax Rules and the mere fact that both these provisions are designed to achieve a some what similar purpose is too slender a foundation for the application of the cases construing one provision for determining the scope of the other. We therefore propose to confine our attention to the language used in the two rules 14(2) and 17(1) and gather the intention of the rule-making authority as expressed by words employed." Thus, the conclusion in State of Madras v. Lousis Dreyfus & Co. Ltd. ( 1955 6 STC 318 ) was reached because of the difference between the scheme of the Indian Income Tax Act and the Scheme of the Madras General Sale Tax Rules, and so, that case can have no application to cases arising under S.33 and 34 of the Indian Income Tax Act or under statutes having the same scheme and containing provisions identical to those sections. Further, the Full Bench had also no occasion in that case to consider the question, when a particular assessment is sought to be reopened, and a re-assessment made on the assessee thereunder including turnover which had not been taken into account in his original assessment but which had been included in some other assessment, whether the turnover which is thus sought to be included in the re-assessment would be turnover which had escaped assessment within the meaning of rule 17 or not, and has expressed no opinion at all on that question. 29. As has been stated already, except as regards the extent of the time within which the notices required by S.35 of the Travancore Cochin Agricultural Income Tax Act and S.34 of the Indian Income Tax Act have to be issued, there is practically no difference between S.34 and 35 of the Travancore Cochin Act and S.33 and 34 of the Indian Act as those sections stood before the amendments of 1939. Therefore, in view of the case law discussed in paragraphs 7 to 16 and 22 to 26 above, it has to be held that income has escaped assessment within the meaning of S.35 of the Travancore Cochin Agricultural Income Tax Act, if it was not taken into consideration in the proceedings which culminated in the assessment, sought to be reopened and was not included in that assessment, no matter whether it was included in some other assessment or not. On the larger question, whether income can be said to have escaped assessment by the mere non inclusion of it in the assessment, we express no opinion as it is not necessary to do so in this case. The Agricultural Income Tax authorities themselves seem to have correctly understood the position of law in this case. On the larger question, whether income can be said to have escaped assessment by the mere non inclusion of it in the assessment, we express no opinion as it is not necessary to do so in this case. The Agricultural Income Tax authorities themselves seem to have correctly understood the position of law in this case. Although the contention of the learned Government Pleader before us was that, on account of the separate assessments in respect of the incomes from the properties transferred to Natarajan and Mohan such income could not be held to be income which has escaped assessment even as regards Suppan Chettiar's individual assessment, it was, as can be seen from the letter extracted in paragraph 2 of this judgment, by exercise of the powers vested in the Agricultural Income Tax Officer under S.35 of the Travancore Cochin Agricultural Income Tax Act in respect of income which has escaped assessment, that Suppan Chettiar's assessments for 1953-54 and 1954-55 were reopened and the incomes from the properties transferred to Natarajan and Mohan also where included in the reassessment made on him for these years. That letter also makes it plain that it was only because the time limit prescribed for the issue of the notice under S.35 had expired so far as the reopening of the assessments for 1951-52 and 1952-53 were concerned that the Commissioner's power under S.34 were invoked for reopening those assessments. 30. All the authorities are clear that, if S.34 of the Indian Income Tax Act will be attracted to a case, S.33 of that Act can have no application to it; and the learned Government Pleader also conceded before us that if the corresponding section of the Travancore Cochin Agricultural Income Tax Act (S.35) will be attracted S.34 of that Act can have no application to this case. In cases which clearly fall under S.35 of the Travancore Cochin Agricultural Income Tax Act the omission of the Income Tax authorities to take action within the time prescribed by that section cannot be cured, by invoking the Commissioner's powers of revision under S.34. In cases which clearly fall under S.35 of the Travancore Cochin Agricultural Income Tax Act the omission of the Income Tax authorities to take action within the time prescribed by that section cannot be cured, by invoking the Commissioner's powers of revision under S.34. It is also clear from the cases discussed in paragraphs 18 to 21 above that acting under S.33 of the Indian Income Tax Act the Commissioner cannot give any direction to a subordinate authority which that subordinate authority is not competent to do under any of the other provisions of the Act, for the power which the Commissioner has under S.33 to pass such orders as he thinks fit is expressly made by that section "subject to the provisions" of the Act. In view of the similarity of the provisions in the two Acts, this rule must hold good in cases arising under the Travancore Cochin Agricultural Income Tax Act also. 31. In view of the similarity of the provisions in the two Acts, this rule must hold good in cases arising under the Travancore Cochin Agricultural Income Tax Act also. 31. It follows from the above discussion that: (i) When a particular assessment which has become final is sought to be reopened and re-assessment is sought to be made on the assessee, any income which was not included in the original assessment and which was also not taken into consideration in making that assessment has to be held to be income which has escaped assessment, within the meaning of S.35 of the Travancore Cochin Agricultural Income Tax Act, so far as that assessee is concerned, and no reassessment can be made on the assessee except under S.35 and in accordance with the provisions thereof; (ii) in exercise of his revisional powers under S.34 of the Travancore Cochin Agricultural Income Tax Act the Commissioner cannot in such a case reopen the assessment and make a re-assessment including the 'escaped income' and can only give a direction to the Agricultural Income Tax Officer to take steps under S.35; and (iii) since the Commissioner cannot direct the Agricultural Income Tax Officer to do anything which the latter is not competent to do and since the Agricultural Income Tax Officer is competent to reopen an assessment and make a re-assessment under S.35 only after issuing the notice under that section, which has to be issued within three years of the financial year for which the concerned assessment had been made, the Commissioner is not competent to exercise his revisional power for giving a direction to the Agricultural Income Tax Officer to reopen an assessment and make a re-assessment after the lapse of the period prescribed for issuing the notice under that section. 32. As the income derived in 1950-51 and 1951-52 from the properties transferred to Natarajan and Mohan was not included in the original assessments for 1951-52 and 1952-53 made on Suppan Chettiar by the Agricultural Income Tax Officer on 31-1-1955 and was not also taken into consideration in making that assessment on him, the income from those properties was, so far as he was concerned, income which had escaped assessment and no re-assessment could therefore have been made on him including in his assessment the escaped income except under S.35 of the Travancore Cochin Agricultural Income Tax Act. Since the Commissioner's direction to the Agricultural Income Tax officer to make the revised assessment was made only after the lapse of the period prescribed for issuing the notice under S.35 without which no re-assessment could be made, the said direction was illegal and could not be acted upon. 33. For the reasons stated above, the questions referred to this court by the Commissioner and set out in paragraph 2 of this judgment are answered as follows :-- Questions Nos. 1 and 4 : On the facts of this case the Commissioner is not empowered to pass the order of 2-4-1957 under the powers conferred on him by S.34 of the Travancore Cochin Agricultural Income Tax Act and the direction issued by him in that order to the Agricultural Income Tax Officer, set out in question No. 4, was without jurisdiction. Questions Nos. 2 and 3 : The power which the Commissioner has under S.34 of the Travancore Cochin Agricultural Income Tax Act to give directions, in exercise of his revisional jurisdiction suo moto, to the Agricultural Income Tax Officer to take steps under S.35 is subject to the period prescribed by that section for issuing the notice mentioned therein. He is not therefore entitled to give a direction to reopen an assessment in regard to a financial year more than three years prior to the reopening. 34. As the assessee has succeeded in the reference the respondents will pay his costs including an Advocate's fee of Rs. 100/- (Rupees one hundred only).