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TMI Blog1947 (6) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... lant himself initiated. For the first time before their Lordships the appellant by his counsel raised the contention that the Income-tax Officer could not lawfully have made the assessment under Section 23 (3) as he had not given the necessary notice under Section 23 (2), and that for this reason the assessment must be treated as having been made under Section 23 (4). This plea depends for its validity upon questions of fact which have not been investigated and it is in their Lordships' opinion too late for the appellant to raise it now. In the result their Lordships will humbly advise His Majesty that this appeal must be dismissed - - - - - Dated:- 17-6-1947 - JUDGMENT LORD SIMONDS.- The substantial question raised in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as duly signed by the appellant. The details in Note 5 were not given, a matter which in these proceedings has assumed great importance. On the same day the appellant made a statement to the Income-tax Officer in the vernacular which he duly recorded. This statement according to the translation recorded in the judgment of the Court of the Judicial Commissioner was as follows : I have filled the form. I have given my approximate income. I had my books but they were spoiled in the fire which occurred during the previous year. My munshi (clerk) has been ill and was treated for a long time by me. He could not therefore write those books correctly. Enquiry should be made about my status and I should be assessed on the payments made to me by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying that the return was not valid. The Assistant Commissioner by his order of the 18th January, 1942, affirmed the assessment of the Income-tax Officer and, rejecting the appellant's plea that there was no valid return, imposed the maximum penalty of ₹ 14,000 under Section 28 (1) of the Act. The appellant next appealed against both decisions of the Assistant Commissioner to the Income-tax Appellate Tribunal. It is unnecessary to refer further to the assessment, since that is not under appeal to their Lordships. It is however important to note what were the grounds (so far as they are now relevant) of appeal against the imposition of a penalty. These were in effect twofold, and are thus stated in the judgment of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case the assessee had filed a valid return, so as to justify an assessment under Section 23 (3) of the Act ? If the answer to question (1) be in the negative, (2) Whether on the facts of the case, the assessment could be deemed to have been made on default under Section 23 (4) in which case there was no valid proceeding on appeal before the Appellate Assistant Commissioner (under the law as it stood before its amendment in 1939), and consequently no power in Appellate Assistant Commissioner to take action under Section 28 ? As appears from the judgment of the Court of the Judicial Commissioner the appellant's contention in that Court was as follows : The return of income rendered by the appellant on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for challenging the validity of the return made by the appellant than those adduced in the Courts in India. The reasons so adduced have been already stated and they appear to their Lordships to be without foundation. It has been observed that the appellant when making his return failed to comply with the prescribed form in that he did not enter any details such as Note 5 of the form required. It is this failure which in the appellant's contention invalidated his return. It is unnecessary for their Lordships to determine whether the Income-tax Officer could properly have declined to receive such a return and, upon the footing that the assessee had failed to make a return, have made an assessment to the best of his judgment under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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