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TMI Blog1972 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of the court was delivered by PATHAK J.- The Income-tax Appellate Tribunal has referred the following question : "Whether, on the facts and circumstances of the case, the Tribunal was justified in upholding the order of the Appellate Assistant Commissioner directing the Income-tax Officer to make a fresh assessment after issuing a proper notice under section 23(2) of the Income-tax Act, 1922, for the assessment year 1960-61?" The assessee is Sant Baba Mohan Singh. He has been assessed as an individual for the assessment year 1960-61 for which the relevant account year ended on March 31, 1960. In response to a notice under section 22(2) of the Income-tax Act, 1922, he filed a return showing his income as nil. In the return he made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the absence of such notice to complete the assessment under section 23(3). It is urged that the power conferred under section 31(3)(b) to set aside the assessment and direct the Income-tax Officer to make a fresh assessment is a power exercised when the assessment is a valid proceeding. It seems to us that the contention that the Appellate Assistant Commissioner should have made an order under section 31(3)(a) must be negatived. Section 31(3)(a) speaks of the power of the Appellate Assistant Commissioner to annul an assessment. That is a power to be exercised where the assessment proceeding is a nullity in the sense that the Income-tax Officer had no jurisdiction ab initio to take the proceeding. A proceeding is a nullity when the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y if an enquiry had already been made before the impugned assessment order was passed and not where no enquiry had at all been made. In our opinion, the language of section 31(3)(b) does not warrant such a narrow interpretation. It seems to us wide enough to include a case where no enquiry has been made and an assessment order has been made arbitrarily. In any event, we find from a perusal of the assessment order that the Income-tax Officer when making it took into consideration a number of documents, including two registered deeds, the reply of the assessee to certain queries, an affidavit filed by the assessee as well as the bank pass book of the account maintained by the assessee. All this material was before the Income-tax Officer and h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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