9911796707
TMI Blog1982 (5) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... In fact, the assessee is not aggrieved on the score that the assessment has been framed under section 144 of the Act. The grievance of the assessee is in relation to quantum of income assessed. 3. In appeal, the assessee took three specific grounds as under before the Commissioner (Appeals) : " 1. That the assessment order framed by the learned ITO is bad in law. 2. That the appellant could not attend to the hearing fixed for28-1-1980due to serious illness outside the town. 3. The appellant reserves the right to add any other ground at the time of the hearing of the appeal." 4. The Commissioner (Appeals) held that ground No. 1 was vague and general while in the second ground, the assessee appears to suggest that the assessment sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come from house property as in the past at Rs. 17,500. Assessment on total income of Rs. 1,17,500." 7. A reading of the above narration reveals that whereas the ITO has discussed the figures of sales of wine and auto parts in relation to the immediately preceding year, viz., 1976-77, he has conveniently not discussed the figure of assessed income. That apart, there is no material on record, much less any circumstance or matter or receipts or sale figures for coming to the conclusion that, for the assessment year under appeal, the income of the assessee from business should be Rs. 1 lakh. As regards income from house property, the ITO has adopted the same figure as has been taken for the assessment purposes in the earlier years and that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timate, and to that extent he must make a guess ; but the estimate must be related to some evidence or material and it must be something more than mere suspicion. To use the words of Lord Russel of Killowen again, ' he must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must take into consideration such materials as the assessing officer has before him, including the assessee's circumstances, knowledge of previous returns and all other matters which the assessing officer thinks will assist him in arriving at a fair and proper estimate. In the case under our consideration, the assessing officer did not do so, and that is where the grievance of the assessee arises." 10. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other mere technicalities should not be allowed to come in the way of justice. 14. In view of the above position, the Orders of the lower authorities are set aside insofar as the quantum of assessed income from the income head ' Business is at issue ', and the subject-matters stand restored to the file of the ITO with the directions that the assessment be framed de novo after bringing on record the material to justify the assessment and in conformity with the provisions of the Act and the pronouncements of the decisions of the High Court and the Hon'ble Supreme Court mentioned as above. The assessment shall be ex parte, under section 144 of the Act and to the best of the judgment of the ITO but has to be based on material on record. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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