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TMI Blog1957 (2) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... er and there urged that the assessment was illegal and invalid. The ground for this contention was that as the return that he had filed declared an income below the taxable limit it was not a "return" within the meaning of the Income-tax Act, and that proceedings could have been taken against him only by invoking the provisions of section 22(2) read with section 34 and that as this was not done the assessment was illegal. This contention was rejected by the Appellate Assistant Commissioner who held that when an assessee had filed voluntarily a return there was no necessity for the Income-tax Officer to call in aid section 34 and that the assessment was, therefore, valid. This view was upheld and the appeal of the assessee was dismissed by the Appellate Tribunal on further appeal by the assessee. They, however, referred to this Court the following question of law for its decision: "Whether the aforesaid assessment of ₹ 30,000 for the assessment year 1947-48 is valid?" Before we deal with the legal contentions urged on behalf of the assessee, it is necessary to mention one fact about which there is no dispute, that there was no notice issued to the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a return filed was a voluntary one under section 22(1) or not, the fact that the income disclosed is less than the minimum might be an important or even a crucial factor for proving that it was really one under section 22(2). We might add that this was precisely the scope of the decisions of the Calcutta High Court on which learned counsel for the assessee relied and to which we shall advert a little later. But this is far from saying that a return which admittedly was not preceded by any action on the part of the Income-tax Officer under section 22(2) and which was a voluntary return ceases to be a "return" because of the quantum of the income it disclosed. If this argument were right it would follow that where an assessee filed such a return under section 22(1) even within the assessment year the Income-tax Officer would be obliged to proceed as if no return had been filed and be enabled to levy penalties under section 28 for failure to furnish "a return" on the ground that what was filed was not "a return". There would be other anomalous consequences like the inapplicability of section 22(3) and (4) in the case of such persons but as the point is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee in this case was a return, the assessment was otherwise invalid. Learned counsel however relied on the decision of the Calcutta High Court in Commissioner of Agricultural Income-tax v. Sultan Ali [1951] 20 I.T.R. 432. The question before the Court related to an assessment under the Bengal Agricultural Income-tax Act the provisions of which were exactly similar to those contained in the Indian Income-tax Act. After the public notice under the section corresponding to section 22(1), there had been an individual notice served on the assessee under the provision corresponding to section 22(2) and subsequently the assessee had submitted a return disclosing an income below the taxable limit. The main question for the Court's consideration was whether this was a voluntary return or not. If it was in pursuance of the requisition of the Income-tax Officer, it would not be voluntary. It was however contended by the Department that as the requisition was issued after the period, when a valid requisition could be made, had expired, it must be treated as honest and that the return filed though factually in compliance thereof should be treated as legally attributable to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the learned Judge did hold that a voluntary return filed under section 22(1) was not any the less "a return" within the Act because it disclosed an income below taxable limit. We are reinforced in this conclusion by the explanation of these observations by Chakravartti, C.J., himself in R.K. Das & Co. v. Commissioner of Income-tax, West Bengal [1956] 30 I.T.R. 439, to which we shall refer presently. That the correct view is as above stated has been held by the Bombay High Court in Ranchhoddas Karsondas v. Commissioner of Income-tax, Bombay City [1954] 26 I.T.R. 105, where Chagla, C.J., delivering the judgment of the Court and after referring to the observations of Chakravartti, C.J., of the Calcutta High Court, said: "It is difficult to understand if it is open to a person to file a return which shows an income below the assessable limit under what other section would such a return be made except under section 22(3); and it must also be said that this opinion of the learned Judge is obiter because in that particular case after a notice under section 24(1) was issued there was also a notice under section 24(2) [corresponding to our section 22(2)].......But to take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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