TMI Blog1929 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... elegram pleading a private engagement and asking for an adjournment for two weeks. If this has been granted in full, it would have entailed a postponement of the hearing until 18th October. The Income Tax Officer did not grant it in full, but he did adjourn the case until the 12th. This he intimated to the assessee by means of a postcard despatched on the 4th. The assessee did not appear or cause the production of his accounts on the 12th, and since he had thereby failed to comply with the terms of the notice, the Income Tax Officer, under Section 23 (4), made the assessment to the best of his judgment. 4. The argument addressed to us upon these facts by Mr. T.R. Venkatarama Sastri may be set forth as it stands in the Commissioner's letter of reference: (1) That the postcard communicating the grant of the adjournment should itself be taken to be the notice under Section 23 (2); the fact that the original notice was under Section 22 (4) as well as under Section 23 (2) may for the moment be ignored, as default in compliance with notice under either entails assessment under Section 23 (4). (2) That it should, therefore, have been served on the petitioner by registered pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is expressly withheld by Statute or rule having the force of law, it must be taken to vest in him. It is not possible to regard a question of this kind apart from considerations of practical expediency in its relation to the transaction of public business; and it seems scarcely credible that the legislature, which may be supposed to have kept such considerations in view, would have intended to place this constraint upon an executive officer in the disposal of his work. 8. Accepting then that a hearing under Section 23 (3) may be adjourned, it follows that no second notice under Section 23 (2) for the adjourned date was required by law; and this in effect answers the first part of the question. Mr. Venkatarama Sastri based hie case entirely upon this position, but the question put to us also inquires whether the letter or telegram replying to the application for adjournment is a requisition within the meaning of Section 63 of the Act. Under Section 63(1), A notice or requisition under this Act may be served on the person therein named either by post or, as if it were a summons issued by a Court, under the Code of Civil Procedure, 1908. 9. Under Section 27 of the General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd v. Arlidge (1915) A.C. 120 : 84 L.J.K.B. 72 : 111 L.T. 905 : 79 J.P. 97 : 12 L.G.R. 1109 : 30 T.L.R. 672 are not inapposite. I quote from the latter's judgment: The words 'natural justice occur in arguments and sometimes in judicial pronouncements in such cases. My Lords, when a central administrative board deals with an appeal from a local authority it must do its best to act justly, and to reach just ends by just means. If a Statute prescribes the means it must employ them. If it is left without express guidance, it must still act honestly and by honest means. In regard to these certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative and executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of Justice is wholly unfounded. 12. Where an executive officer, or a department of Government, supplements the procedure laid down by Statute, the principles formulated in this quotation afford a teat whether the supplementary procedure is in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment under Section 23(4). 15. The Commissioner has accordingly referred the following question to the High Court: Where an assessee applies for adjournment by post or by telegram of an enquiry in respect of which he has been required by a notice under Section 23 (2) to produce evidence and the Income Tax Officer grants an adjournment, is the letter (or the telegram where it is a telegram) intimating the fact of the adjournment to the assessee either a notice under Section 23 (2), or a requisition within the meaning of Section 63 of the Act? 16. Section 63 (1) reads: A notice or requisition under the Act may be served on the person therein named either by post, or, as if it were a summons issued by a Court, under the Code of Civil Procedure, 1908. 17. It is not denied that if this was a notice or a requisition under the Act it must be sent by registered post and it were at the same time a notice under Section 23 (2) and not so sent, the Income Tax Officer could not, in default of the assessee's appearance, proceed to make an assessment to the best of his judgment under Section 23 (4). The second question as propounded becomes unnecessary if the first is answered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (2) or, provided the assessee has appeared in compliance with the terms of the notice as soon afterwards, as may be. etc. 20. Now it would require very strong reasons to read into a section words like these which are not there and which deny to the Income Tax Officer a very ordinary and necessary power of granting adjournment even though the assessee may not have appeared or complied with the notice under Section 23 (2). To support this contention he argues that in Section 23 (5) there is no allusion to any adjourned date. Apart from that being a very slight ground to read into Section 23 (3) words which are not there, it has been pointed out for the Crown that Section 23 (4) read with Section 22 (2) shows clearly that the penalty of an assessment under Section 23 (4) (which for the sake of convenience, though not quite accurately, may be called a random assessment) need not necessarily be imposed the moment the default is committed. One of the defaults entailing a random assessment under Section 23 (4) is failure to make a return under Sub-section (1) of Section 22 provides that if the assessee having failed to submit a return or having found an omission or error in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or post it on the board (if such a board is kept). Such an endorsement on the file or notice on the board he is not bound to communicate to the assessee if the latter is absent. It is for the assessee to bestir himself and make enquiries or to look on the notice board or elsewhere. If this is so, and it can not, I consider, be controverted, then the Income Tax Officer is neither bound to proceed under Section 23 (4) on the original date of hearing nor to begin matters all over again by fresh notice under Section 23 (2) so that really the two arguments that he has no power of adjournment if the assessee does not appear and the corollary that he must either act at once under Section 23 (4) or begin with a fresh notice under Section 23 (2) are absolutely essential to establish the contention that a notice of adjournment is a notice under Section 23 (2). I consider that the assessee has failed to make out either of these preliminary contentions. In my view and for the determination of the case it is not material to decide whether a notice or a requisition, if it is not one under a. 23 (2), has to be registered. By the terms of Section 63 if the notice is one under the Act it clearly m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereliction or if by force, majeure , say a sudden accident to the Income Tax Officer which incapacitated him from giving directions, or his sudden death, the enquiry were left in the air on the day fixed for it, it might very well be that proceedings would have to begin all over again. The Act does not expressly provide for any such break in the enquiry. A question of this sort may be decided when and if it arises. It is not before us to decide. Although, the contention in the present case is purely one of law, it is quite clear that if the assessee's argument is accepted that every notice of an adjourned date, even if made at the petitioner's request (if it is cot the date required by the petitioner), necessitates a fresh registered notice under Section 23 (2), the result will simply be in practice that all such adjournments will be refused and the assessment will be decided under Section 23 (4) forthwith. That will work as a great hardship to assessees. The grant of an adjournment is a concession. It was argued that it is no concession if the date asked for by the assessee is not granted. I dissent entirely from this view. The request for an adjournment in these cases im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income Tax Officer during an enquiry under Section 23 (2) required more evidence he can call for it, and it might be advisable to do so by a fresh notice under Section 23 (2). Now it is clear that such notice would be only one supplementary to the one already sent and it need not contain the particulars already given in the previous notice. To hold that a supplementary notice can be sent under Sub-section (2) when the Income Tax Officer requires fresh evidence is a very different proposition from holding that a notice which the Income Tax Officer need not send at all, intimating an adjournment made on a letter or telegram by the assessee asking for it, is a fresh notice or even a supplementary notice under Section 23 (2). I would answer the question (in the form in which I understand it is really intended to be put) thus: That where an assessee applies for adjournment by post or telegram of an enquiry in respect of which he has been required by a notice under Section 23 (2) to produce evidence and the Income Tax Officer grants an adjournment, the latter (or the telegram, where it is a telegram) intimating the fact of the adjournment to the assessee is neither a notice nor a requi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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