TMI Blog1933 (10) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... b-Section (4) of Section 23, wherein no power to determine the sum payable by the assessee on the basis of such assessment has been confered on an Income Tax Officer, is illegal; and (3) Whether a return made under Section 22(2) on the form supplied to the assessee by the Income Tax Officer with the omission of signatures is an incomplete return contemplated by Section 23(2) and the assessment in such case could not be made without issue of a notice under this section viz., 23(2). The facts of the case, as stated are that a notice under Section 22(2) of the Income Tax Act was sent to the assesse and time was extended and in compliance with that notice he sent a return which was not signed on any of its pages and was not verified. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empowers the Income Tax Officer to ascertain the amount of taxable income and does not empower him to calculate the amount of tax payable by the assessee. For this proposition the learned Counsel referred to In re Chhotey Lal, (137 I.C. 77). In that case the question at issue was whether the notice under Section 34 in regard to super-tax on the ground that some income had escaped assessment was valid. A Bench of this Court held that the words had escaped assessment could not apply, because the whole income had been assessed to income tax, although it had not been assessed to super-tax. The Bench however did hold that another portion of Section 34, would apply which refers to income which has been assessed at too low a rate. In the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im. It was held that this did not necessarily make the plaint void and that the defect might be taken to have been waived by the defendant and might have been cured by amendment at any stage of the suit and was not a ground for interference in appeal. In Shib Deo Misra v. Ram Prasad (46 A. 637) it was held that a plaint which had been filed without due verification could be verified at a later stage of the suit even after the expiry of limitation. We do not consider that any analogy can be drawn from a plaint. The specific section in the Income Tax Act dealing with the return in question is as follows:- 22 (2). In the case of any person other than a company whose total income is, in the Income Tax Officer's opinion, of such an amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard of the different branches of the business of the assessee, and it was held that the assessee had deliberately failed to comply with Section 22(2) and that the Income Tax Officer was entitled to make a best judgment assessment under Section 23(4). It was further argued by the learned Counsel that the failure to sign and verify the return is a matter which will come under Section 23(2). That sub-section refers to the case where the Income Tax Officer has reason to believe that a return made under Section 22, is incorrect or incomplete. The learned Counsel argued that in the present case the return was incomplete, because signatures and verification were lacking; but we do not consider that the word incomplete in Section 23(2) can c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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