TMI Blog1939 (9) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000 for the year 1934-1935. The applicant is the grandmother of the present taluqdar. The names of the guzaradars of the estate were intimated to the Income-tax Department by the taluqdar by a letter dated the 26th August 1935. The Income-tax Officer by his letter, dated the 2nd September 1935 enquired if the guzaradars, including the applicant, were members of a joint Hindu family with the taluqdar or not, upon which the Raja replied in the negative. Thereupon the Income-tax Officer issued notices calling upon the Rani to furnish returns of her income for the years mentioned above and the Rani in compliance with the notices submitted her returns. The Income-tax Officer accepted the returns and without any further notice to the assessee as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to be referred to the Chief Court before the Income-tax Officer and as such no appeal against the order of assessment was maintainable before the Assistant Commissioner. The proceedings of appeal in his opinion before the Assistant Commissioner were ultra vires and could not be regarded in law as proceedings under Section 31 of the Act and could not form the foundation of a reference to the Chief Court. At the hearing of the applications in this Court a prelimin ary objection was taken by the learned Counsel representing the Income-tax Department to the effect that the applications were not maintainable on the ground, that as the assessment had not been objected to before the Income-tax Officer, no appeal was maintainable before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice is required to state whether he is liable to assessment or not. Mere filing of a return therefore cannot be said to be tantamount to an admission by the person submitting the return that he is liable to assessment. Further, from the provision contained in Section 23(1) of the Indian Income-tax Act it appears that the Income-tax Officer, if he is satisfied that the return made under Section 22 is correct and complete, is bound to assess the total income of the assessee as shown in the return, and shall determine the sum payable by him on the basis of such return. It is contemplated that this assessment may be made without any further notice to the assessee, and therefore, in case the Income-tax Officer has accepted the return, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very general and confer a right of appeal in unqualified terms under conditions and contingencies enumerated in that clause. The general nature of the words of that clause is further emphasised by the proviso to that clause, which we have reproduced above. It follows, therefore, that every assessee, who has been assessed by the Income-tax Officer, has an unqualified right of appeal under Section 30(1) whether he had questioned his liability to assessment under the Act before the Income-tax Officer or not. The learned Counsel for the Income-tax Department has argued that where an assessee has not contested his liability to assessment before the Income-tax Officer, the assessment must be deemed to be an assessment by consent and hence not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dha v. Income-tax Commissioner, U.P. and Asoka Mills Ltd. v. Commissioner of Income- tax, Bombay. The case in Biradhmal Lodha v. Income-tax Commissioner is the case in which the question required to be raised by the assessee under Sec. 25-A was not raised before the Income-tax Officer and in appeal it was held that the Assistant Commissioner was justified in not entertaining it in appeal. The case in Asoka Mills Ltd. v. Commissioner of Income-tax, Bombay, seems to have no application to the point arising in the present case. We may further observe that the absence of a dispute by an assessee as to his liability of being assessed under the Act where he had an opportunity of raising it may be a ground for not entertaining it in appeal but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a member of the joint Hindu family is dependent upon whether she is such a member or not. At no stage of the case it was hinted that she received this money in any other capacity or in recognition of any other right. The only question addressed by the Income-tax Officer to the taluqdar was whether she was a member of an undivided family or not. He never entertained any doubt as to her receiving the money in the right of a Hindu widow in family. Further, no such question was raised either before the Court of appeal or before the learned Commissioner of Income-tax, and it is too late to raise that question now. The learned Commissioner himself in paragraph 3 of his judgment has observed as follows:- I would have gladly referred it for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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