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TMI Blog1950 (3) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ? Besides the two points referred to us by the Tribunal, the assessee in his application had asked the Tribunal to refer a third question, namely, whether non-issue of notice under Section 23(2) constituted sufficient cause preventing him from complying with the terms of the notice under Section 22(4). The facts of the case on which our opinion is sought are as follows : The assessee Gopinath Biswambar Roy was asked by a notice under Section 22(2) of the Income-tax Act to furnish a return of his income of the previous year by the 23rd October, 1944, for the purpose of assessment of income-tax for the year 1944-45. The assessee asked for extension of time on several occasions which was granted and he was asked by a reminder ultimately to submit his return by 24th February, 1945. On the 20th March, 1945, however, the assessee filed a return which was not accompanied by copies of profit and loss account and balance-sheet. There does not appear to be any other defect in the return. By a letter dated 19th June, 1945, the Income-tax Officer drew the assessee's attention to the omission but no steps were taken by the assessee to rectify it. Before the issue of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee having filed an invalid return, it must be taken that there was no return in the eye of the law justifying the Income-tax Officer in making an assessment to the best of his judgment and the Tribunal also found the other points against the assessee. The assessee then made an application under Section 66(1) of the Act for a reference to this Court on the three questions which we have stated above, but the Tribunal has referred only two questions for our opinion by its order dated 18th December, 1948. Mr. Fazlul Huq who has appeared for the assessee at the hearing of the case on this reference, in the course of his argument urged upon us to ask the Tribunal to refer the third point also to us which was not referred by the Tribunal. We do not think the assessee is entitled at this stage to ask us to direct the Appellate Tribunal to state the case and refer the point to us. In such cases the law provides a remedy to the assessee by an application to be made within six months from the date on which he was served with the notice of refusal by the Tribunal to apply to this Court for the purpose of such reference under Section 66(2) of the Act. No application as required by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return in the prescribed form and verified in the prescribed manner setting forth (along with such other particulars as may be provided for in the notice) his total income and total world income during the previous year. The form of the return has been prescribed by Rules made by the Central Board of the Revenue under the power given to it by Section 59, sub-section (1), of the Income-tax Act, which by its sub-section (5) provides that Rules made under this section shall have effect as if enacted in this Act. The form of the return is prescribed by Rule 19 in which directions have been given as to the manner in which the return is to be furnished. In Part IV ' of Rule 19, the direction given is as follows :- If the accounts are kept on the mercantile accountancy or book profit system a copy of the Profit and Loss Account and Balance-Sheet must be attached to this return. If the accounts are kept on any other system, the name or description of the system is to be stated and a copy of any statement which corresponds to the Profit and Loss Account in the mercantile accountancy system must be attached to this return. In the case of a Company a copy of the Auditor's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated was shown, and not all the details required under Note 5 were given, it was held that the income-tax authority could treat it as no return at all and make an assessment under Section 23(4) of the Act. In the case of Behari Lal Chatterji v. Commissioner of Income-tax [1934] 2 ITR 377 ; ILR 56 All. 418 a return was made without signature or verification and it was held that it was not a proper return and it could be treated as no return by the Income-tax Officer and the assessment made to the best of his judgment. In all these cases the defects were grave and fundamental which amounted to completely ignoring the provisions of Rule 19. To meet cases where the omission or defect is slight and may be due to a bona fide mistake, the Income-tax Act contains several provisions, namely, the person may be allowed to rectify the mistake or omission under Section 22(3) and he may be called upon under Section 23(2) to attend at the Income-tax Officer's office or to produce or cause to be produced any evidence on which such person may rely in support of such return. He also may take advantage of any notice that may be served on him under Section 22(4) to supply accounts in support of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default in complying with the notice under Section 22(4), it was held that the Taxation Officer was right in making the assessment to the best of his judgment under Section 23(4) of the Act. The difference between Section 23(2) and Section 22(4) was also explained at page 713 in that case as follows :- The power under clause (4) of Section 22 is a power to the Income-tax Officer which his reference, to accounts and documents and to no other form of evidence. The right under Section 23(2) is a right to call. It was also observed in that case that there was no warrant in the statute for saying that after a return is made the power given by Section 22(4) is gone. In the case of R.M.S.R.M. Ramaswami Chettiar v. Commissioner of Income-tax [1929] ILR 52 Mad 194, where also a combined notice under Section 22(4) and Section 23(2) was issued and where the notice under Section 23(2) was complied with and there was non-compliance with the one under Section 22(4), assessment under Section 23(4) was held to be justified. It was held in that case that: Even after an assessee has submitted a return of his income and has complied with the terms of the notice issued to him und ..... 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