K. T. DESAI, J. ( 1 ) THE petitioners have prayed for a writ direction or order quashing and setting aside a notice under section 34 of the Indian Income-tax Act 1922 issued against Messrs. C. J. and Co. the second petitioner herein and restraining the Income-tax Officer Ward C Jamnagar who is the respondent from taking any further proceedings in pursuance of the said notice. ( 2 ) A notice was issued against Shri Fulchand Purshottam the first petitioner under sec. 34 (1) (a) of the Indian Income-tax Act 1922 as a non-resident for the assessment year 1948-49. In response to the said notice the first petitioner filed a return of income on 31st July 1957 for the accounting Samvat Year 2003 showing a loss of Rs. 12 0 0 in Saurashtra and an income of Rs. 5 43 in the territories then known as British India. In the course of investigation the Income-tax Officer found that in the books of account of the first petitioner for Samvat Year 2003 there was a sum of Rs. 4 19 0 which was debited to the account of Messrs. C. J. and Company the second petitioner being the amount of profits of Messrs. C. J. and Co which was divided amongst the five partners of Messrs. C. J. and Co. The sum of Rs. 4 19 0 was credited in the accounts of the five partners of the firm of C. J and Co. in the following proportions :- @@@ shri Fulchand Purshottam (1st petitioner ). 9/17 Sharatchandra Jethalal 3/17 Tribhovan Tejpal 2/17 Chhaganlal Popatlal 2/17 Narsidas Liladhar 1/17 1/17 The amount that came to the share of the first petitioner was Rs. 2 20 500 This sum of Rs. 4 19 0 represented the profit made by the firm of C. J. and Co. in connection with transactions of 1 200 bars of silver. It so happened that on 25th March 1947 the first petitioner had obtained a permit from the erstwhile State of Nawanagar to import 2 0 bars of silver from Hong Kong. That permit was subsequently amended on 5th April 1947. The amendment is not material for the purpose of the present petition. It so happened that on 25th March 1947 the first petitioner had obtained a permit from the erstwhile State of Nawanagar to import 2 0 bars of silver from Hong Kong. That permit was subsequently amended on 5th April 1947. The amendment is not material for the purpose of the present petition. It is stated by the first petitioner that thereafter he agreed with certain other persons to carry on in partnership the business of purchase and sale of silver bars to be imported under the said permit issued to the first petitioner. It is stated that the first petitioner who looked after the entire business obtained overdraft and other facilities from the Central Bank of India Limited Jamnagar and ultimately imported 1 200 bars of silver. 300 bars of silver were received in Saurashtra and were subsequently sold in Saurashtra. The remaining 900 bars were shipped to Bedi Port Jamnagar; but by reason of a notification dated 24th June 1947 of the Government of India the same could not be cleared in that Saurashtra Port and hence the said 900 bars were received at Bombay. The said 900 bars were cleared through the Customs by the Central Bank of India Limited Bombay on behalf of their Jamnagar Branch and remained in their custody. Subsequently the same were sold and the sale proceeds were collected by the Central Bank of India Limited Bombay and credited to the account of their Jamnagar Branch who in turn credited the same in Jamnagar to the credit of the first petitioner. The sum of Rs. 4 19 0 represented the profit on the sale of these 1 200 bars and the same was distributed amongst the various partners of C. J. and Co. as stated above. The Income-tax Officer assessed to tax the profit of Rs. 2 20 500 coming to the share of the first petitioner from the profits made by the firm of C J. and Co. The assessment order is dated 26th March 1958. The assessment order makes reference to other income received by the assessee in British India. The first petitioner being aggrieved by the said order preferred an appeal to the Appellate Assistant Commissioner on 8th July 1958. The assessment order is dated 26th March 1958. The assessment order makes reference to other income received by the assessee in British India. The first petitioner being aggrieved by the said order preferred an appeal to the Appellate Assistant Commissioner on 8th July 1958. On 29th June 1959 the Appellate Assistant Commissioner confirmed the order of the Incometax Officer In the meantime on 18th September 1958 the Income-tax Officer addressed a notice to the second petitioner firm in which it was stated that he proposed to initiate action under sec. 34 (1) (a) against the second petitioner firm for the assessment year 1948-49 as it appeared to him to be clear that three-fourth of the aforesaid profit of Rs. 4 19 0 accrued or arose and had been received in Bombay and that the firm had earned a profit which was assessable under the Indian Income-tax Act The second petitioner in reply by the letter dated 1st October 1958 contended that the respondent firm was constituted in Jamnagar in order to effect sales of silver bars imported from Hong Kong and that the firm earned Rs. 4 19 0 the said deal but the profit could not be said to have accrued arisen or received in Bombay as the business was con- trolled from Jamnagar and requested the Income-tax Officer to drop the proceedings contemplated to be taken. On 3rd March 1959 the Incometax Officer issued a notice under sec. 34 (1) (a) of the Income-tax Act against the second petitioner stating that he had reason to believe that the income of the second petitioner assessable to income-tax for the year ending 31st March 1949 had escaped assessment and required the firm to file its return within 35 days from the date of receipt of the said notice. The aforesaid notice was issued after the necessary satisfaction of the Central Board of Revenue. The petitioner on 11th April 1959 sent a reply challenging the validity of the aforesaid proceeding initiated against the firm contending inter alia that the Income-tax Officer had acted in excess of his jurisdiction in assessing the entity when one of its co-sharers had been previously assessed before the issue of the notice under sec. 34 (1) (a ). This notice under sec. 34 (1) (a) issued against the second petitioner firm is now sought to be challenged by this Special Civil Application. 34 (1) (a ). This notice under sec. 34 (1) (a) issued against the second petitioner firm is now sought to be challenged by this Special Civil Application. ( 3 ) BEFORE coming to the points of law raised in this petition it would not be out of place to mention that the first petitioner against whom the order of assessment had been passed being aggrieved by the decision of the Appellate Assistant Commissioner preferred an appeal to the Incometax Tribunal on 6th August 1959. Various grounds have been set out in support of the appeal. One of the grounds taken in the appeal is that the notice that had been issued under sec. 34 against the first petitioner himself was invalid. On 4th October 1961 the Tribunal passed an order of remand calling for a report after due investigation in respect of certain matters which they considered to be necessary for the purpose of disposing of the appeal pending before it. In the order of remand itself it has been stated that the points other than those referred to therein would be dealt with by the Income-tax Tribunal at the time of the final disposal of the appeal. ( 4 ) THE principal ground urged before us is that once the Income-tax Officer has proceeded to assess the tax payable by a partner in a firm it is thereafter not open to him to assess the firm and strong reliance has been placed upon the provision contained in section 3 of the Indian Income-tax Act 1922 Sec. 3 as it existed at the relevant time ran as under:-3 Charge of Income-Tax:- Where any Central Act enacts that income-tax shall be charged for any year at any rate or rates tax at that rate or those rates shall be charged for that year in accordance with and subject to the provisions of this Act in respect of the total income of the previous year of every individual Hindu undivided family company and local authority and of every firm and other association of persons or the partners of the firm or the members of the association individually. ( 5 ) SECTION 3 is a charging section. ( 5 ) SECTION 3 is a charging section. It lays down that income-tax shall be charged in accordance with and subject to the provisions of the Act in respect of the total income of the previous year of every firm or the partners of the firm. The section contemplates that the income of the firm or of the partners thereof should be charged to tax. It is strongly urged that once the Income-tax Officer proceeds to assess to tax the income derived from a firm in the hands of a partner of the firm it is not open to the Income-tax authorities to proceed to assess the income of the firm. It is urged that in the present case the Income-tax Officer had proceeded to assess in the hands of the first petitioner the income derived by him from the firm of C. J. and. Co. the second petitioner and that once that income had been taxed it was not open to the Incometax authorities to seek to assess the income of the firm for the same assessment year. It is urged that the very object of issuing the notice under sec. 34 against the second petitioner firm was to assess the income of the firm and that such a proceeding was not permissible in law. In support of this contention reliance has been placed upon two decisions of the Bombay High Court and one decision of the Allahabad High Court. ( 6 ) IN the case of J. C. Thakkar v. Commissioner of Income-tax Central Bombay reported in (1955) XXVII I. T. R. 658 a Division Bench consisting of Chief Justice Chagla and Justice Tendolkar held that the Income-tax Act advisedly and clearly gave an option to the Income-tax authorities either to assess the unregistered firm and then proceed to assess each individual partner of that firm or not to assess the unregistered firm at all but to assess each individual partner and include his share of the profits in the firm in his assessment. That was case where the assessee J. C. Thakkar for the relevant year was carrying on the joint venture in shares with two other persons the venture having yielded a profit of Rs. 2 73 130 Out of this amount a sum of Rs. 1 16 543 came to the assessees share. That was case where the assessee J. C. Thakkar for the relevant year was carrying on the joint venture in shares with two other persons the venture having yielded a profit of Rs. 2 73 130 Out of this amount a sum of Rs. 1 16 543 came to the assessees share. This amount was included in the assessees total income by the income-tax Officer. It was urged by the assessee that the sum of Rs. 1 16 543 could not be included in his total income without an assessment being made en the association of persons consisting of himself and the aforesaid two persons. In that case also reliance had been placed upon the provisions contained in sec. 3 of the Indian Income-tax Act. 1922. In the course of its decision of the Bombay High Court has observed that in the charging section itself far from their being a prohibition against a partner of a firm being assessed to tax there was a legislative fiat as it were in favour of the Income-tax department if it chose to assess a partner and not the firm of which he was a partner. At page 667 of that report it has been observed as follows: -. . . . IN our opinion the Income-Tax Act advisedly and clearly gives an option to the Income-tax authorities either to assess the unregistered firm and then proceed to assess each individual partner of that firm or not to assess the unregistered firm at all but to assess each individual partner and his share or the profits in the firm for his assessment. . ( 7 ) THAT decision though on facts entirely different from those that exist in this case is a clear authority for the proposition that under Sec. 3 an option is given to the Income-tax authorities and that it is upon to the Income-tax authorities to exercise such option. It is not permissible to the Income-tax authorities under the provisions of the said section to adopt both the alternatives therein provided. The Income-tax authorities are entitled to charge to Income-tax in accordance with and subject to the provisions of the Act the total income of a firm or the partners there of What can be done by the Income-tax authorities in bringing to tax the total income of a firm has been dealt with in sec. The Income-tax authorities are entitled to charge to Income-tax in accordance with and subject to the provisions of the Act the total income of a firm or the partners there of What can be done by the Income-tax authorities in bringing to tax the total income of a firm has been dealt with in sec. 23 (5) of the Incometax Act. It is necessary to quote the provisions of that section in order that the result which flows from the exercise of the powers under sec. 23 may not be mixed up with the result which may flow from a proceeding to assess the total income of the partners of the firm. Section 23 as it then stood provided as under :-23 (5) Notwithstanding anything contained in the foregoing sub-sections when the assessee is a firm and the total income of the firm has been assessed under sub-sec. (1) sub-sec. (3) or sub-sec. (4) as the case may be:- (a) in the case of a registered firm the sum payable by the firm itself shall not be determined but the total income of each partner of the firm including therein his share of its income profits and gains of the previous year shall be assessed and the sum payable by him on the basis of such assessment shall be determined. Provided further that when any of such partners is a person not resident in the taxable territories his share of the income profits and gains of the firm shall be assessed on the firm at the rates which would be applicable if it were assessed on him personally and the sum so determined as payable shall be paid by the firm. ( 8 ) PROVIDED also that if at the time of assessment of any partner of the registered firm the Income-Tax Officer is of opinion that the partner is residing in Pakistan the partners share of the income profits and gains of the firm shall be assessed on the firm in the manner laid down in the preceding proviso and the sum so determined as payable shall be paid by the firm; and (B) in the case of an unregistered firm the Income-Tax Officer may instead of determining the sum payable by the firm itself proceed in the manner laid down in clause (a) as applicable to a registered firm if in his opinion the aggregate amount of the tax including super-tax If any payable by the partners under such procedure would be greater than the aggregate amount which would be payable by the firm and the partners individually if the firm were assessed as an unregistered firm. ( 9 ) AS observed by the Privy Council in the case of Seth Badridas Daga and another v. Commissioner of Income-Tax Central and United Provinces reported in (1949) XVII I. T. R. 209 at 211 the context in sec. 23 makes it clear that down at least to the middle of sub-sec. (5) (a) assess and assessment refer primarily to the computation of the amount of income and assessee means primarily a person the amount of whose income is being computed. The section requires the Income-tax Officer to do two things: first to compute or assess a persons total income and then to determine the sum payable as tax. It has further observed that sub-sec. (5) only comes into operation after the total income of the firm has been computed or assessed under one of the earlier sub-sections. It draws a distinction between registered and unregistered firms. In the case of a registered firm the firm does not itself pay income-tax and therefore the sub-section directs that the sum payable by the firm shall not be determined but that each partners share of the firms income shall be included in the assessment or computation of the total income of that partner. Thereupon the sum payable by that partner as tax is to be determined on the basis of that assessment which includes his share of the firms income. Thereupon the sum payable by that partner as tax is to be determined on the basis of that assessment which includes his share of the firms income. In the present case we are concerned with a firm which had not been registered and in respect whereof no application for registration was pending. In such a case when an Income-tax Officer is proceeding under section 23 (5) (b) it is open to him instead of determining the sum payable by the firm itself to proceed in the manner laid down in clause (a) as applicable to a registered firm. But this power is not absolute. There is a further provision that he has a right to do so if in his opinion the aggregate amount of the tax including super-tax if any payable by the partners under such procedure would be greater than the aggregate amount which would be payable by the firm and the partners individually if the firm were assessed as an unregistered firm. ( 10 ) WE shall next consider an unreported decision of the Bombay High Court in The Commissioner of Income-tax Bombay South Poona v. Murlidhar Jhawar and Purna Ginning and Pressing Factory Dharmabad delivered by a Division Bench consisting of Tambe and V. S. Desai JJ. on 4th July 1962 In that case one Murlidhar Jhawar was carrying on business of purchase and sale of groundnuts in association with two other persons who themselves were carrying on business in the firm name of Purna Ginning and Pressing Factory. It was a business venture lasting for a short period. In the assessment proceeding against the partners of Purna Ginning and Pressing Factory the profit of the venture as disclosed amounted to Rs. 51 280 The respective shares in the said income from this venture were assessed and brought to tax in the hands of Murlidhar and the two partners of Purna dinning and Pressing Factory and the assessments against all these three persons were completed with the result that the income derived from the joint venture was taxed in the hands of all the three persons who carried on that joint venture. In the assessment order however the Income-tax Officer made the following note: Joint venture income with Messrs. Purna Ginning and Pressing Factory taken provisionally subject to ratification after the assessment of the joint venture. In the assessment order however the Income-tax Officer made the following note: Joint venture income with Messrs. Purna Ginning and Pressing Factory taken provisionally subject to ratification after the assessment of the joint venture. After the assessments had been made at the instance of the Income-tax Officer Murlidhar voluntarily submitted a return of the income of the joint venture but subsequently withdrew it. The Income-tax Officer thereafter proceeded to complete the assessment of the joint venture on the footing of the joint venture being a joint venture of an unregistered firm. He computed the income of the joint venture and brought it to tax in the hands of the firm. Thereupon an objection was raised on the ground that the income of the joint venture having been already taxed in the hands of the partners of the firm it was not open to the Income-tax Officer to tax it again in the hands of the firm. The Income-tax Officer overruled that objection and the appeal of the assessee failed. The matter went before the Tribunal which accepted the contention urged by the appellant and held that the department having assessed the individual partners and having included their respective shares of profit in the joint venture in their individual assessments could not again assess the unregistered firm. The Division Bench of the Bombay High Court first considered the question whether on the material on record it could be said that the Department had finally exercised its option of assessing the partners and came to the conclusion that it was difficult to hold that the right to tax the income of the firm in the hands of the firm was reserved by the Department. In its view all that could be said was that the Department had not finally accepted the income namely Rs. 51 280 as the income of the firm when it proceeded to assess the partners in respect of the income of the firm and had reserved to itself the right to ascertain the extent of the true income of the firm and make the necessary rectification in the assessment orders of the partners. Thereafter it proceeded to state as under:. . . THEREFORE all that was open to the Department to do was to compute the income of the firm and make necessary adjustments in accordance with its conclusions. To that the assessee had raised no objection. . Thereafter it proceeded to state as under:. . . THEREFORE all that was open to the Department to do was to compute the income of the firm and make necessary adjustments in accordance with its conclusions. To that the assessee had raised no objection. . ( 11 ) IN answer to the question raised before it namely whether on the facts and in the circumstances of the case he assessment of the unregistered firm was proper and legal the two partners of this partnership having been assessed in respect of their shares of income from this partnership business it was stated as under :. . . ON the facts and in the circumstances of the case the assessment of the unregistered firm in the sense that the income has been charged to tax in its hands was not proper and legal the two partners of this partnership having been assessed in respect of their shares of income from this partnership business. ( 12 ) THIS decision is an authority for the proposition that once the income of an unregistered firm has been brought to tax in the hands of the partners of the firm it is not open to the Income-tax authorities to proceed to tax the income of the unregistered firm in the hands of the firm. ( 13 ) THE Allahabad judgment relied upon on behalf of the petitioners is the one in Joti Prasad Agarwal and others v. Income-tax Officer B Ward Mathura reported in (1959) XXXVII I. T. R. 107. In that case out of the 30 members of an association 23 were assessed to income-tax and in their individual assessments their respective shares of the profits earned by the association during that period were included and the tax levied thereon was paid by them. It was held that once the income of the association was charged to income-tax in the hands of the members individually and the assessments of the members remained valid assessments there could be no fresh assessment of the income in the hands of the association. They have stated that sec. 3 of the Act which is the main charging section only talks of charging the income of certain persons and does not talk of income-tax being charged on persons and that the same implied that the charge was to be levied on an income only once. They have stated that sec. 3 of the Act which is the main charging section only talks of charging the income of certain persons and does not talk of income-tax being charged on persons and that the same implied that the charge was to be levied on an income only once. The learned Advocate General who appears on behalf of the respondent strongly urged before us that there is nothing in the provisions contained in sec. 3 which would prevent the issue or a notice under sec. 34 against the firm even though the assessment had been made on one of the individual partners of the firm of C. J. and Co. He drew our attention to several provisions contained in the Act at the relevant time in support of this contention. He first invited our attention to the provisions contained in sec. 14 (2) (a ). That section at the relevant time provided as under:-14 (1) xx xx xx xx xx (2) The tax shall not be payable by an assessee (a) if a partner of an unregistered firm in respect of any portion of his share in the profits and gains of the firm computed in the manner laid down in clause (b) of sub-sec. (1) of sec. 16 on which the tax has already been paid by the firm. ( 14 ) HE urged that this section requires the actual payment of the tax by the firm before a partner of an unregistered firm is exempted from payment of tax. He further urged that the mere assessment to tax of an unregistered firm was not sufficient if it was not followed by the payment of the tax. He also relied upon the provisions contained in sec. 16 (1) (a) which at the relevant time provided as under:-16 (1) In computing the total income of an assessee- (a) any sums exempted under the first proviso to sub-sec. (1) of sec. 7 and second and third provisos to sec. 8 sub-secs. (2) (3) (4) and (5) of sec. 14 sec. 15 sec. 15b and sec. 15c shall be included and any sum exempted under sec. 15a shall also be included except for the purpose of determining the rates at which income-tax (but not super-tax) is payable by the assessee to whom the exemption is given; ( 15 ) HE placed strong reliance on the wording of sec. 14 sec. 15 sec. 15b and sec. 15c shall be included and any sum exempted under sec. 15a shall also be included except for the purpose of determining the rates at which income-tax (but not super-tax) is payable by the assessee to whom the exemption is given; ( 15 ) HE placed strong reliance on the wording of sec. 35 (5) which has been enacted by the Legislature by sec. 19 of the Income-tax (Amendment) Act 1953 with effect from the 1st April 1952. That sub-section runs as under :35 xx xx xx xx xx (5) Where in respect of any completed assessment of a partner in a firm it is found on the assessment or re-assessment of the firm or on any reduction or enhancement made in the income of the firm under sec. 31 sec. 33 sec. 33a sec. 33b sec. 56 or sec. 56a that the share of the partner in the profit or loss of the firm has not been included in the assessment of the partner or if included is not correct the inclusion of the share in the assessment or the correction thereof as the case may be shall be deemed to be a rectification of a mistake apparent from the record within the meaning of this section and the provisions of sub-section (1) shall apply thereto accordingly the period of four years referred to in that sub-section being computed from the date of the final order passed in the case of the firm. ( 16 ) HE urged that this section contemplates a completed assessment of a partner in a firm and a further assessment or reassessment of the firm. He urged that the words on the assessment of the firm implied an initial or first assessment of the firm and that there could be an assessment of the firm even after there was a completed assessment of a partner in a firm. This section deals with the question of rectification of mistakes. There are various circumstances under which mistakes might take place. Sec. 35 (5) deals with some of such circumstances. This section deals with the question of rectification of mistakes. There are various circumstances under which mistakes might take place. Sec. 35 (5) deals with some of such circumstances. It is possible to contend that when the section speaks of a completed assessment of a partner in a firm and refers to a subsequent assessment of the firm the completed assessment may be of the partner as an individual wherein his share of the income of the firm may not have been shown. The wording of the section would equally apply where a completed assessment of a partner in a firm may include the share of the income of that partner in the firm. This section by itself cannot control or govern the meaning to be attached to the limiting words contained in sec. 3. We have primarily to construe the provisions of sec. 3 and give effect to them. There is still another way of looking at sub-sec. (5) of sec. 35. Sub-sec. (5) talks of the assessment or re-assessment of the firm and if the expression assessment of the firm is to be given a limited meaning namely the computation of the income of the firm then there would not be any assessment to tax of the income of the firm in the hands of the firm as stated by us earlier. Sec. 35 (5) may throw some light on the legislative intent but the words contained therein cannot control the provisions set out in the charging section. ( 17 ) A reference was made to the decision of the Madras High Court in Talipatigala Estate v. Commissioner of Income-tax Madras reported in (1950) XVIII I. T. R. 320. In that case it has been laid down by the Madras High Court that proceedings under sec. 34 of the Act could be initiated against a firm which was not assessed previously even if one of the partners of that firm had been individually assessed on his share in the firm. In that case one of the partners had been assessed in 1941-42 to income tax in British India on his total income profits and gains which included his share of the partnership business carried on in Ceylon. In the assessment year 1942-43. In that case one of the partners had been assessed in 1941-42 to income tax in British India on his total income profits and gains which included his share of the partnership business carried on in Ceylon. In the assessment year 1942-43. the firm was sought to be assessed as a resident under sec 34 of the Act on the ground that its income had escaped assessment for the previous assessment year 1941-42. It was contended that this assessment was not permissible in view of the terms of sec. 34 of the Indian Income-tax Act. It was contended that a partnership firm was different from the members composing it for income-tax purposes and was recognised as a separate assessable unit under sec. 3 of the Income-tax Act. The Court in that case observed that though according to the Partnership Act a partnership firm was not a single legal person still for purposes of income-tax the firm was regarded as having a separate status and existence and was a distinct entity apart from the individual partners who carry on the business of the firm and that it could not be said that the assessment of an individual partner in a particular year was a bar to the assessment of the firm for that year. Though this decision on the face of it indicates that proceedings can be initiated against a firm which was not assessed previously even if one of the partners has been individually assessed on his share in the firm the question of the interpratation of sec. 3 or of the exercise of an option thereunder has not been considered at all. This decision does not furnish us with any guide as regards the interpretation of sec. 3. ( 18 ) THE learned Advocate General invited our attention to a decision in Ratee Ram and Sons Kanpur v. Commissioner of Income-tax United Provinces reported in (1951) XIX I. T. R. 235 where it has been laid down that where a firm itself had not been assessed the mere fact that a partner of the firm had been assessed on his individual share in the income of the firm by an Income-tax Officer was no bar to an assessment on the share of income of the other partner or partners by the Income-tax Officer of a different place. This decision does not throw much light on the problem with which we have to deal in the present case. ( 19 ) SOME authorities were cited before us in connection with the powers of the Income-tax Officer under sec. 34 but it is not necessary to deal with the same. In our view on a plain reading of sec. 3 once the income derived from a firm has been charged to tax in the hands of a partner of the firm without any assessment proceedings being instituted against the firm it is not open to the Income-tax Department to charge to tax the income of the firm in the hands of the firm after taking assessment proceedings against the firm. The question that would then arise would be: Is it open to an Income-tax Officer having charged to tax in the hands of a partner his share in the income of the firm to issue a notice under sec. 34 at all against the firm ? Section 34 as it stood at the time when the notice in question was issued provided as under :-34 Income escaping assessment :- (1) If- (a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under sec. 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year income profits or gains chargeable to income-tax have escaped assessment for that year or have been under assessed or assessed at too low a rate or have been made the subject of excessive relief under the Act or excessive loss or depreciation allowance has been computed or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee the Income tax Officer has in consequence of information in his possession reason to believe that income profits or gains chargeable to income-tax have escaped assessment for any year or have been under-assessed. at too low a rate or have been made the subject of excessive relief under this Act or that excessive loss or depreciation allowance has been computed - he may in cases falling under clause (a) at any time and in cases falling under clause (b) at any time within four years of the end of that year serve on the assessee or if the assessee is 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-sec (2) of sec. 22 and may proceed to assess or re-assess such income profits or gains or recompute the loss or depreciation allowance; 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: ( 20 ) SECTION 34 provides for various things being done. Under that section a notice may be issued containing all or any of the requirements which may be included in a notice under sub-sec. (2) of sec. 22. It gives the Income-tax Officer the power to assess or re-assess the income profits and gains therein referred to. The expression assessment in sec 34 would cover the various senses in which that expression is used. There is nothing in sec. 3 which prohibits any proceedings that may be taken under sec. 34 so long as income which has been brought to tax in the hands of a partner is not sought to be taxed in the hands of the firm There is nothing in sec. 3 which would preclude a notice being issued under sec. 34 The only question that would arise for consideration would be: What can be done after such notice has been issued? It has been strongly urged on behalf of the petitioners that the notice under sec. 34 in the present case cannot but prove infructuous. It was urged that if it is not intended to charge the income in the hands of the second petitioner then no useful purpose would be served by the service of such a notice. There is not much substance in this plea. As we have already stated earlier even the very issue of the notice under sec. 34 in connection with the assessment proceedings against the first petitioner has been challenged. There is not much substance in this plea. As we have already stated earlier even the very issue of the notice under sec. 34 in connection with the assessment proceedings against the first petitioner has been challenged. If in those proceedings that contention by any chance is upheld then the whole assessment against the first petitioner is liable to be set aside. Even if such assessment is not set aside proceedings can be taken against the second petitioner firm upto the stage of ascertainment of the income of the second petitioner firm. In a case where different partners have been individually assessed to tax if the Income-tax Officer has in consequence of information in his possession reason to believe that the income of the firm which has come to each one of the partners has escaped assessment he may instead of taking numerous proceedings under sec. 34 against the individual partners proceed against the firm under sec 34 Only with a view to ascertain the true income of the firm which would be binding on all the partners with a view that the amounts coming to the respective shares of partners may be brought to tax in the hands of the partners themselves. It is not possible for us to say under these circumstances that the Income-tax Officer in the present case had no authority to issue the notice under sec. 34 against the second petitioner firm. After the true income of the firm has been determined he would only be entitled to act in confirmity with the provisions of sec. 3 of the Act. We have no reason to suppose that he will not act in accordance with law and there is nothing before us which would make us conclude that in issuing the notice his sole intention has been to assess the income of the firm in the hands of the firm. . ( 21 ) IN the result no case has been made out for quashing or setting aside the said notice under sec. 34 which has been issued against the firm of C. J. and Co. On the facts and circumstances of the case there will be no order as to costs. Order accordingly. .