TMI Blog1925 (6) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... es on a business in cloth, gold, silver, jute and groceries at Kishungunj and other places. With regard to his income at the other places we are not concerned and no question arises. With regard to his income from his business in groceries in Kishungunj, it is no longer contended that the assessee can seek any further relief under section 66. But with regard to the cloth, gold, silver and jute businesses at Kishungunj, it is contended that the accounts were produced and that under section 13 the Income-tax Officer ought to have assessed the income in accordance with the regular method of accounting as shown by the assessee's books. What happened was that the assessee was called upon by the Income-tax Officer under section 23 sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee then applied under section 66 sub-section (2) of the Act asking the Commissioner to state a case. The Commissioner took the view that the assessment had been made not under section 23(3) , but under section 23(4) and consequently there was no appeal permissible from the Income-tax Officer and although the Assistant Commissioner had in fact heard and determined such an appeal still he considered that the Assistant Commissioner had no jurisdiction to do so and, therefore, he must treat the case as one in which no appeal was permissible and as if no appeal had been preferred. If that were so, it would follow that no application under section 66 sub-section (2) could succeed. 3. The first question we have to determine in the present a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplied with the notice served upon him under section 23 (2) . I cannot, however, take this view. Sub-section (3) of the same section provides that on the day specified in the notice issued under sub-section (2) , the Income-tax Officer, after hearing such evidence as such person may produce and such other evidence as the Income-tax Officer may require on specified points (and there is nothing in this case to show that he required any further evidence) shall, by an order in writing, assess the total income of the assessee, and determine the, sum payable by him on the basis of such assessment. It seems to me that the assessment in the present case was carried out under that sub-section. He saw the witness, he considered the evidence produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear to me to bring the case within the provisions of section 23 sub-section (4) . The reason, therefore, given by the Commissioner for refusing to state a case, in my opinion, cannot stand. 5. The next question we must consider is whether there is any substance in the present application that the Commissioner should be ordered to state a case. The facts as set out in the petition and as stated by Mr. Jayaswal on behalf of the assessee are that the accounts produced in support of the cloth, gold, silver and jute businesses, although not balanced or not closed in the sense I have already referred to undoubtedly show by taking very slight trouble and carrying out a very simple sum in arithmetic what the actual profits made for the year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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