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TMI Blog1949 (3) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Officer under Section 28 of the Act. The facts which led up to this reference may be briefly stated. On the January 16, 1940, the Income Tax Officer issued a notice under Section 22, sub-section (4), of the Income Tax Act for production of certain accounts and documents. The assessee failed to comply with that notice. The assessment of the assessee was completed by the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are laid down for various defaults committed under the Act, and we are concerned with Section 28(1), sub-clause (b), which deals with an assessee failing to comply with a notice under sub-section (4) of Section 22 and the penalty prescribed is that he may be liable to pay, in addition to any tax payable by him, a sum not exceeding the Income Tax which would have been avoided if the income as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e registered firm as a firm. The assessment is in the assessment of each partners of the registered firm. Therefore when we turn to Section 28, we find that if a registered firm commits a default by not complying with the requisition under sub-section (4) of Section 22, there is no penalty which can be imposed upon a registered firm, because the penalty enacted in Section 28 can only be imposed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishment. The offender would be liable to undergo the enhanced punishment although, when he committed the offence, the punishment imposed was less than when he was actually convicted. I do not quarrel with that principle. But in this case Mr. Joshi's difficulty lies in this : that at the date when the notice was issued against the assessee, his failure to comply with the requisition under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is entitled to the benefit of that lacuna, and in our opinion the Tribunal was right in coming to the conclusion that the penalty imposed was not valid under the law. We must, therefore, answer the question in the negative. Commissioner to pay the costs. TENDOLKAR, J. - I agree. Reference answered in the negative. - - TaxTMI - TMITax - Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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