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TMI Blog1924 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... see chose to produce on the appointed day. The assessee and their representatives attended with their books and the Income-tax Officer told them that the wastage which they were claiming to deduct from their gross returns was more than it ought to be, and more than it was in their other mill, or in previous years in this mill. It is obvious that if a person has once already been assessed in respect of the profits of a particular business, and the profits suddenly show a decrease resulting from the same bulk of material, something has happened to create a diminution of the profits; in that respect the onus is upon the assessee not as a matter of law, but as a matter of practice and common sense. If a man is receiving so much a year rental fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Income-tax, regarding the assessee as entitled to ordinary justice and the full hearing, which every litigant has a right to, sent the case back to the Income-tax Officer' to give the assessee the further opportunity which they desired. What precise opportunity they had been deprived of does not appear, but in fact a re-hearing took place before the Income-tax Officer. On that occasion they produced oral evidence including an expert, on whom they greatly relied, and generally directed their evidence, as they were entitled to do, to showing that in this mill wastage was high and the percentage claimed was instified. The Income-tax Officer, knowing that in their other mill they kept a daily stock book by which the wastage could be rou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this particular year in this particular mill, and that it did not exist in the other mill of the assessee ; weighing all these various facts in the scale, he came to the conclusion that the fair thing to do was to assess them at the figure which he ultimately decided. He did not in fact require them by any notice in writing to produce further evidence on specified points and he did not in fact regard them as being in default so as to enable him to work sub-section (4), and he assessed them, after weighing all the evidence direct and indirect, under section 23(3). The above statement of facts though importing, as it necessarily must, the adverse view which the Income-tax Officer took of the assessee's returns and his conduct and his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax Officer has the same power as a court under the Civil Procedure Code when trying a suit to enforce the attendance of any person and to compel him to give evidence on oath, to compel the production of witnesses and of documents, and to examine witnesses on commission. So that he has all the powers of a Judge in a suit, so far as concern witnesses and documents. This gives him ample facilities for securing information and guidance from rivals in the trade of the assessee, or experts, or past employees, or managers, acquainted either with the particular business of the assessee, or the class of business in the neighbourhood-and no further provision is required in any other part of the Act to vest that power in him. Section 37 is compr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further evidence about the machinery . He may then adjourn the enquiry, fix a fresh date, and in order to prevent mistake require by a fresh notice the assessee to produce other evidence on the specified point, namely on the defect which had appeared in the machinery, on such adjourned date. As my brother pointed out during the argument, sub-section (2) does not confine the Income-tax Officer to one notice, and such further notice if given would become a notice under subsection (2). The evidence, if produced, would be other evidence such as the Income-tax Officer has required on specified points, and having obtained it he can then assess under sub-section (3). If the assessee chooses not to produce further evidence on those specified poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Com missioner expresses alarm in case this Court held that by the word 'require' in this clause is meant 'require from the assessee.' The Commissioner enquires how a fair assessment is to be made if the Income-tax Officer is confined to hear evidence produced I by the assessee only and not any other evidence. This clause however is to be read with the rest of the Act, and it does not take away the power of the Income-tax Officer to call for and hear evidence under the powers he has under section 37 of the Act. The only difference between clause (3) and clause (4) is that in cases falling under clause (3) he is to arrive at an assessment to the best of his judgment on the evidence before him, while under clause (4) he is to d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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