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TMI Blog1947 (6) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... actor at Bannu in the North West Frontier Province, supplying livestock, wood and vegetables to the military units stationed in Waziristan. On the 13th April, 1938, a notice was sent to him under Section 22(2) of the Act requiring him to furnish on or before the 13th May, 1938, a return for the year 1938-39 of his income for the previous year 1937-38. He did not do so. After two attempts to serve him with notice under Section 22(4) of the Act to produce accounts or documents had failed, he was served with such a notice returnable on the 18th October, 1938. On the same day he appeared before the Incometax Officer and produced a return made out on the usual form. This return showed no income except against item 5, which is headed " Business, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment the appellant appealed to the Assistant Commissioner of Income-tax on the 30th November, 1938. The appeal was directed solely to the amount of the assessment. It was not suggested in the grounds of appeal that the assessment had not been validly made under Section 23(3) of the Act. In the course, however, of the proceedings before the Assistant Commissioner " it came to notice " (so runs his judgment) " that the assessee had concealed the particulars of his income and had deliberately furnished inaccurate particulars. " Notice was therefore issued to him to show cause why a penalty should not be imposed on him under Section 28 of the Act. It was thereupon urged on his behalf that it was not competent for the Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tails prescribed by Note 5 of the form. But it was also suggested that, having regard to the statement made by the appellant contemporaneously with his return, the item of income entered in his return should be regarded only as an estimate and that the return itself should therefore be held to be invalid. These contentions the Tribunal rejected, as also they rejected an argument that, as there was no proper return filed, the Income-tax Officer was bound to make an assessment to the best of his judgment under Section 23(4) and not to proceed under Section 23(3) of the Act. The appellant then applied to the same Tribunal under Section 66 of the Act that questions of law should be referred to the decision of the High Court, and, after argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that the so called return was merely an approximate guess. If there was no proper return, the Income-tax Officer could not make a valid assessment under Section 23(3) of the Act. Therefore, it was contended, the assessment was made, or must be deemed to have been made, under Section 23 (4) of the Act ; and, consequently, under Section 30 (1) of the Act [as it stood until amended as regards subsequent years of assessment by the Indian Income-tax (Amendment) Act, 1939], the appellant had no right of appeal against the assessment to the Appellate Assistant Commissioner, who, consequently, had no jurisdiction to impose a penalty, since there were no proceedings before him in which he had jurisdiction to do so. The Court of the Judicial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, as appeared upon the face of the assessment, proceeded under Section 23 (3). Neither in the incompleteness of the return nor in the fact that in an accompanying statement the appellant referred to his return as an estimate can their Lordships find any possible justification for the plea that the assessment was incompetent or that the Appellate Assistant Commissioner had no jurisdiction to entertain the appeal proceedings which the appellant himself initiated. For the first time before their Lordships the appellant by his counsel raised the contention that the Income-tax Officer could not lawfully have made the assessment under Section 23 (3) as he had not given the necessary notice under Section 23 (2), and that for this reason th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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