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TMI Blog1961 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... 56, the petitioner was informed of the said transfer and subsequently notices under sections 22(4) and 23(2) were issued on February 6, 1956, and served on the petitioner on February 9, 1956. The petitioner did not comply with these notices and the Income- tax Officer proceeded to make a best judgment assessment under section 23(4) of the Income-tax Act. On March 29, 1956, the petitioner was served with a notice of demand under section 29 of the Indian Income-tax Act intimating to him that a sum of ₹ 97,223-7-0 had been determined as payable by him and calling upon him to make the payment in respect of the said demand as directed therein. No order of assessment, however, was supplied to the petitioner along with this notice of demand. The petitioner made repeated requests to respondent No. 1 to furnish him with the assessment order for the assessment year 1946-47 and ultimately on May 7, 1956, the petitioner was informed that the alleged assessment order of 1946-47 was not traceable. Thereafter if appears that recovery proceedings were commenced by the Department by issuing a certificate under section 46(1) of the Indian Income-tax Act to respondent No. 2 the Additional Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t form for 1946-47, which was available on the records of the office and which was signed by the officer who had made it, was sent to the petitioner by the Department on May 27, 1960. It was contended that the said assessment form which was duly signed by the Income-tax Officer and a copy whereof was served on the petitioner could be construed as an assessment order made under section 23(4) so as to enable the petitioner to avail himself of the remedies open to him in law. It was, therefore, contended that the notice of demand dated March 29, 1955, was not a nullity but was issued on the basis of a valid assessment order made by the Income-tax Officer. Mr Joshi, learned counsel appearing of the respondents, has urged that the petition is also liable to be dismissed on the ground of delay. The notice of demand, which is sought to be quashed in the present proceedings, was served on the petitioner so far back as March 29, 1956, and the present application, which has been filed more than four years thereafter suffers from gross delay. We do not think that the petition could be dismissed on the ground of delay. It is no doubt true that the notice of demand was served on the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termining the sum payable by him on the basis of such assessment was required to be passed. On the construction of section 29, it seems to us impossible to hold that except in consequence of an order passed under or in pursuance of the Act a notice of demand is capable of being issued. That section reads as follows: 29. When any tax, penalty or interest is due in consequence of any order passed under or in pursuance of this Act, the Income-tax Officer shall serve upon the assessee or other person liable to pay such tax, penalty or interest a notice of demand in the prescribed form specifying the sum so payable. There can be no doubt whatever that the words due in consequence of any order passed under or in pursuance of this Act must be taken together and it is not possible to split these words and read them as suggested by Mr. Joshi, because if that construction is accepted, it will be not only an ungrammatical construction but will also leave the words in consequence of any order passed under hanging in the air. On a plain and proper reading of the language used in the section, therefore, it seems to us clear that it is only when a tax is due in consequence of any or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. The respondent No. 1 wants to rely on the existence of such an order, firstly, relying on the presumption relating to the due performance of the official acts. The argument in this connection is that since a notice of demand with an assessment form in the prescribed manner, which follow on the making of the order, have been sent to the petitioner in the present case, the antecedent act of making the order should be presumed to have been done. We do not think that the presumption relating to the due performance of the official acts can be availed of in the manner in which the respondents want to avail of the same. The said presumption only relates to the proper performance of the act where the act is proved to be done. It does not relate to the doing of the act itself, which, it is alleged, has not been done. The issuing of the notice of demand along with the assessment form in the prescribed manner will not, therefore, suffice to raise a presumption that the assessment order was duly and properly made. It is then contended that since an exact copy of the assessment form signed by the officer, who made the assessment, exists on the record of the office, it should be presumed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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