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TMI Blog1961 (9) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... 54, he voluntarily filed returns for all the three years. These returns were ignored by the Income-tax Officer, who, with reference to the assessment year 1945-46, initiated proceedings under section 34 of the Act and finalised the assessment on March 5, 1955, under section 34 read with section 23(4). For the assessment year 1947-48, resort was not had to section 34, but the assessment was completed under section 23(3) of the Act on March 26, 1956. In the writ petition referred to, the validity of the assessments themselves was challenged on the ground that on the respective dates of assessments, they were barred by limitation. A bench of this court, to which I was a party, went into the question in some detail and held that a return filed by the assessee, after the expiry of the period of four years specified in section 34(3), cannot form the basis of any valid assessment. The bench observed; "After the expiry of four years from the end of the assessment year 1945-46, no assessment could have been made on the petitioner without recourse to section 34(1) and recourse would be had to section 34(1) only on the ground that no return had been filed, that is, that no return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated in section 34(3) stood excluded in such a case, the bench reached the conclusion that the assessment for the year 1947-48 was not barred by limitation. The only point raised by the petitioner in the review petition is shortly this. Here is a case where it has been held that a return filed beyond the period of four years from the close of the assessment year is not a return which can form the basis of lawful assessment. Such a return is non est in law. While it was specifically so held by the bench in relation to the assessment year 1945-46, the position was just the same in relation to the assessment year 1947-48, the voluntary return in that case also having been filed only on March 20, 1954. The conclusion of the bench was that there was no return before the assessing authority. If there was no return, the contention of the petitioner is that it is a clear case which would come only within the scope of section 28(1)(a) of the Act and not under section 28(1)(c). For a case to fall under the latter provision which deals with "concealment of the particulars of the income" or of "deliberately furnishing inaccurate particulars of such income" there should be a return in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise imposed by section 34(3) of the Act. The matter was not considered from the angle of the finding that a voluntary return field after the period of four years from the close of the assessment year is non est in law. Whether section 28(1)(c) can ever come into pay in a case where there was no return at all was not specifically considered by the bench, though in the notes of argument recorded by me, it is found that such a contention was in fact advanced at the tail-end of the arguments. The question that I have thus to consider is whether where no return has been filed at all, it could be said that there has been a concealment of the particulars of income or deliberate furnishing of inaccurate particulars of the income. It is manifest that a failure to furnish a return of income which an assessee is required to furnish by a notice given under sub-section (1) or (2) of section 22 would fall within section 28(1)(a). The legislature has provided for various categories of failures and wilful omissions. Section 28(1)(a) covers cases of failure to make a return of income in response to a general or special notice. Section 28(1)(b) takes note of cases of failure to comply with a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not fall under any of the sub-sections except sub-section (a) of section (28)(1). Mr. Ranganathan, for the department, argues that notwithstanding that the return is filed beyond the period of four years from the close of the assessment year, it is nevertheless valid. He claims that any return can be tested only at the time of the assessment and the application of section 28(1)(c) can be examined only at that stage. He argues that for the purpose of section 28(1)(c) there need not be a valid return in the sense that it was filed within the period of four years referred to. His alternative contention is that even if the return is invalid, the assessment which purports to have been made under section 23(3) might nevertheless be construed as one made under section 23(4) treating it as one where no return has been filed. This latter argument fails to satisfy me at all as sound. Obviously, if there was no return at all, a valid assessment could not be made beyond a period of four years from the close of the assessment year unless resort was had to section 34(1). That was not the case here. For a valid assessment to be made under section 23(4), of its own force, it is beyond disput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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