TMI Blog1942 (2) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... n the 15th of August 1935. The notice runs as follows :- Whereas I have reason to believe that your income from business which has been assessed in the financial year ending the 31st March 1935. (a) has partially escaped assessment, and I, therefore, propose (b) to assess the said income that has escaped assessment. I hereby require you to deliver to me....... a return in the attached form of you income from all sources which was assessable in the said year ending the 31st March 1935'. The assessee took some adjournments, but on the 3rd of January 1936 he filed a printed return form duly verified and duly signed but he did not set forth the total income of the previous year which was assessable in the assessment year 1934-35. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee was satisfied that a default had been committed by him in the non-production of account books and an appeal would not be admitted. The assessee then presented an application under Section 27 for cancellation of the assessment, but this application was rejected by the Income Tax Officer on the 16th of May 1936. Their was an appeal to the Commissioner and that appeal was also dismissed. Then there was an application to the Commissioner for action under section 33 and for reference to this Court under Section 66 (2) of the Act. No relief was granted to the assessee under Section 33 and as far as Section 66 (2) of the Act was concerned the Commissioner was of the opinion that no question of law arose out of the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Section 66 (2) before the Commissioner and had invited us to give on this preliminary question. We have heard learned counsel for the assessee and the learned Advocate-General on this point but we think that for the purpose of the present reference it is not necessary to give a considered reply to this question The five question that have been referred to us on the application of the assessee are in our view involved within the ambit of the all embracing question Whether the return submitted is a valid one in the terms of the Income Tax Act, and as such, the assessment made under Section 23 (4) is illegal, and that was the question that the assessee wanted the commissioner to to refer to this Court under Section 66 (2). We no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scaped assessment so far as the assessment year 1934-35 was concerned. The Income Tax Officer did not draw the attention of the assessee to the fact that technically the return filed by the assessee was not correct and that whether any income had escaped assessment or not the assessee again ought to have filled in the particulars of the total income that were required of him by the notice As a matter of fact, when he proceeded to re-assess the assessee the default that he emphasised in this connection was not that the return was not a valid return inasmuch as the particular of the income has escaped assessment as would be shown later and as the assessee had not declared that income this default had to be taken as a ground for framing the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under Section 23 (4) was not illegal. In an earlier portion of our judgment we have said that there was default by the assessee-a default which merited an assessment under Section 23 (4). He was served with a notice under Section 22 (4) and he was required to produce the account books for the Sambat year 1990. He failed to produce his account books and the story that was put forward on his behalf was believed neither by the Income Tax Officer not by the Assistant Commissioner and we have to accept their findings on this point. It follows, therefore, that the assessment under Section 23 (4) was legal and we answer the fourth question in the negative. As regards the fifth question the Income Tax authorities are of the view that some inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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