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TMI Blog1966 (3) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was assessed under section 23(4) for the year in question. The Income-tax Officer thereafter refused to renew registration to the assessee, under section 26A of the Income-tax Act, saying that the account books for the year in question not having been produced, it was not possible for him to verify whether the profits had been distributed in accordance with the terms of the partnership deed. The order of the Income-tax Officer was passed under section 23(4)/26A of the Indian Income-tax Act, 1922. An appeal was preferred against the Income-tax Officer's order to the Appellate Assistant Commissioner. It was urged before him that the renewal of registration having been refused on the ground that the assessment had been made under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase the Supreme Court had to consider the provisions of section 33A of the Income-tax Act. Those provisions relate to the Commissioner making revision of orders passed under the Act by any authority subordinate to the Commissioner. The Supreme Court said that the power under section 33A(2) was judicial and the nature of the jurisdiction and the rights contained in that section made it implicit in revisional jurisdiction that the revising authority shall give an opportunity to the parties affected to put forward their case. Counsel for the assessee also relied on the decision of the Supreme Court in M. Chockalingam and M. Meyappan v. Commissioner of Income-tax in support of the similar contention that the income-tax authorities in making a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r made by the Income-tax Officer was really under section 26A. I am unable to accept that contention because the order was really passed under section 23(4). In the present case notices were issued under section 22(4) of the Income-tax Act calling upon the assessee to produce books. The provisions contained in section 23(4) of the Income-tax Act contemplate best judgment where the assessee fails to comply with the terms of the notice issued under sub-section (4). Therefore, it is apparent that notice was given to the assessee to produce books. The assessee failed to produce books. The power to make the best judgment was attracted. The other power explicit is refusal of registration of a firm. A distinction has been made by the Act between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 23(2). There are two distinct powers granted to the Income-tax Officer under this sub-section. He may refuse to register the firm, or he may cancel the registration of the firm which is already registered. The proviso, however, makes it clear that in the case of cancellation of registration the Income-tax Officer is bound to issue a notice to the firm intimating his intention to cancel its registration. The proviso, therefore, applies to a case where there is cancellation of registration. In the case of refusal to register there is no provision in the section that there should be any issue of notice. In our opinion the principle of the maxim expression unius est exclusion alterins applies to this case, and applying this principle, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held that it was not incumbent on the Income-tax Officer to give notice of his intention to refuse, under the proviso to section 23(4) of the Income-tax Act, a claim for registration or renewal of registration. The Bench decision of the Rajasthan High Court is also an authority for the proposition that the refusal to renew registration is not a deprivation of property. These two Bench decisions, Sahdeo Vijaya Kumar v. Commissioner of Income-tax and Mahabir Glass Manufacturing Co. v. Commissioner of Income-tax, indicate that the case of cancellation of registration contemplated in section 23(4) is dealt with specifically in the proviso to that section whereas the case of refusal of registration or refusal of renewal of registration is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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