TMI Blog1970 (4) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... third is a notice dated March 13, 1967, under section 148 of the new Act. The facts necessary for appreciation of the questions raised in this application may briefly be set out : A notice dated May 11, 1961, under sections 22(2) and 38 of the old Act was served on the assessee, Barin Raha, by the Income-tax Officer, Digboi, in respect of the assessment year 1961-62 on May 16, 1961. The assessee did not submit his return and died on February 22, 1963, after the commencement of the new Act with effect from April 1, 1962. Notice under section 142(1) of the new Act was served upon the legal successor of the assessee on May 14, 1963. Another notice, dated June 4, 1964, under section 22(4) of the old Act was also issued to the legal successor of the assessee. No one complied with the above notices and the order of assessment was passed under section 144 of the new Act on November 25, 1965. Notice of demand under section 156 of the new Act was accordingly issued to the legal successor on December 8, 1965, demanding payment of a sum of Rs. 19,597 within 35 days from the date of service of the said notice. The petitioner applied to the Income-tax Officer for allowing her to pay the tax b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be submits that the order under section 148 is also without jurisdic tion on account of the fact that the conditions precedent for such an order were lacking in this case. The learned counsel also took in his petition the question of the vires of section 297(2)(d)(ii) of the new Act, but did not press this point on account of a recent decision of the Supreme Court in Civil Appeal No. 1593 of 1969 ain Bros. v. Union of India disposed of on November 18,1969. With regard to the first submission, we have to see whether the order in this case could be quashed for not correctly describing the section under which the order was passed. Both the learned counsel admit that the provisions of the old Act are applicable in respect of the assessment year in question. But, says Mr. Ray, that the fact that the orders and notices were given to the petitioner under the provisions of the new Act, these were mere scraps of paper and could be ignored by the assessee who cannot be held liable under these orders and notices. When a question was put to Mr. Ray that if the particular orders and notices are held by the court as those passed under the provisions of the old Act in spite of the fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to a decision of the Supreme Court in Hukumchand Mills v. State of Madhya Pradesh, where the following passage is apposite : " It is true that in the opening part of the notification it is said that the amendments were made under rule 17 of the Tax Rules ; but that in our opinion would not conclude the matter, for if the Government had the power to make amendments under Act, 1 of 1948, the amendments in the Rules could be justified under that power in spite of the wrong words used in the opening part of the notification of December 28, 1949. It is well-settled that merely a wrong reference to the power under which certain actions are taken by Government would not per se vitiate the actions done if they can be justified under some other power under which the Government could lawfully do these acts. " Hence, the first contention of the petitioner fails. Regarding the second submission, it is enough to state that even without an order of rectification the orders could have been treated as those passed under the provisions of the old Act, as have been already held. An order of rectification in this case is only with reference to the sections and does not affect the orders mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) of the old Act. The fact that a person has not complied with a notice under section 22(2) does not automatically authorise the Income-tax Officer to make a best judgment assessment under section 23(4) without complying with the provisions of section 22(4). Even the best judgment assessment under section 23(4) must partake of the character and quality of a best judgment according to the circumstances of each case. Section 23(4) would not give jurisdiction to the Income-tax Officer to make an absolutely arbitrary assessment disregarding the provisions of section 22(4). The minimum requisite is a conformity with the procedural requirement laid down under the law apart from the officer's other honest efforts to arrive at a best judgment. If after service of notice under section 22(4), the assessee does not co-operate with the officer, the latter will have no other alternative than to depend upon his best judgment in such a situation in accordance with the requirements of the case. In this case, after the death of the assessee, notice has been given to the legal successors under section 22(4) of the old Act as also under section 142(1) of the new Act and the procedural requirement o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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