9911796707
TMI Blog1969 (2) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the assessment year 1958-59, corresponding accounting year being 1364 B.S. The said assessment was made ex parte on March 14, 1962, under section 23(4) of the Indian Income-tax Act, 1922. The said assessment was made under section 23(4) because of the failure of the assessee to comply with the notices under sections 22(2) and 22(4) of the Indian Income-tax Act, 1922. On May 9, 1962, an application was made under section 27 of the said Act before the Income-tax Officer requiring the Income-tax Officer to reopen the assessment made under section 23(4) and to make a fresh assessment on the ground that the assessee was prevented by sufficient cause from complying with the notices under sections 22(2) and 22(4) of the Indian Income-tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistant Commissioner. The Appellate Assistant Commissioner held that as the typed date being March 14, 1962, in notice under section 22(4) had been scored out in link and the date, March 15, 1962, had been inserted, it was not possible to ascertain the correct position from the records and as the assessment of the partners was fixed for hearing on March 15, 1962, it was quite possible that the notice on the firm was also for March 15, 1962, by making the alterations in the assessee's copy of the notice, but through inadvertence no entry to that effect was made in the records of this case. In those circumstances, the Appellate Assistant Commissioner was of the opinion that the assessee did not have reasonable opportunity of complying with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that an assessment under section 23(4) of the Indian Income-tax Act, 1922, could not be made unless there has been a default on the part of the assessee not only under section 22(2) of the said Act but also under section 22(3) thereof ?" Section 22(2) of the Indian Income-tax Act, 1922, provides : "In the case of any person whose total income is, in the Income-tax Officer's opinion, of such an amount as to render such person liable to income-tax, the Income-tax Officer may serve a notice upon him requiring him to furnish, within such period, not being less than 30 days, as may be specified in the notice, a return in the prescribed form and v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that on the happening of any one of the contingencies contemplated, that is to say, failure to make a return as required by notice given under sub-section (2) of section 22 or failure to comply with the terms of the notice under sub-section (4) of section 22, or failure to comply with the terms of the notice under sub-section (2) of section 23, the Income-tax Officer is authorised to proceed to make an assessment under section 23(4) of the Indian Income-tax Act, 1922. In the Bench decision of the Allahabad High Court in the case of Behari Lal Chatterji v. Commissioner of Income-tax, it was held that an assessment to the best of judgment can be made under section 23(4) of the Income-tax Act, if there is a failure to make a return under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of section 23(4) of the Income-tax Act there has to be not only a default in compliance with section 22(2) of the Indian Income-tax Act, 1922, but also what has been described as a default under section 22(3) of the Indian Income-tax Act, 1922. In our opinion, there is no scope for considering whether there is default under section 22(3) of the Indian Income-tax Act, 1922. The expression "default" as mentioned in Stroud's Judicial Dictionary, page 757, volume I, is a French word. The word "defelta" is legally taken for non-appearance in court. It is a relative term and its connotation naturally depends upon the context. In the context of the scheme in which the expression has been used in this case, we are of the opinion that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd non-compliance with notice under section 22(2) of the Indian Income-tax Act, 1922, but if before an assessment is completed the assessee files a return, the Income-tax Officer cannot proceed to make assessment under section 23(4) of the Indian Income-tax Act, 1922. It is an admitted position in this case that there has been non-compliance with notice under section 22(2) of the Indian Income-tax Act, 1922, that is to say, there has been default under section 22(2) of the Act. If that is the position, then the Income-tax Officer was justified in proceeding to make the assessment under section 23(4) of the Indian Income-tax Act, 1922. Inasmuch as there was no obligation imposed upon the assessee by section 22(3) of the Indian Income-tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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